Sitting of 25 February 1876

MINUTES.
PUBLIC BILLS— First Reading—United Parishes (Scotland) * (18).
Second Reading—Appellate Jurisdiction * (5).

RECEPTION OF FUGITIVE SLAVES.

  THE DEBATE IN THE COMMONS.—PEESONAL EXPLANATION.
  EARL GRANVILLE: My Lords, I rise to ask your Lordships' forbearance on a personal question, It would not
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  have been necessary, if as I am informed, my Colleagues had not been constrained to remain silent last night by the Parliamentary custom of allowing the Prime Minister to have the last word—a custom which is convenient to the House, and certainly is not without advantage to the Government, but which imposes a greater responsibility as to the statement of facts upon which the immediate division is to be taken. It has happened on two occasions on the debate on the Address—one last year and one this—that I appealed to the noble Marquess the Secretary of State for India and the noble Earl the Secretary for the Colonies, as to whether they did not disclaim the particular grounds on which their administration had been praised by the Prime Minister. Out of mere consistency I must therefore refuse any compliment such as that which has been paid to me in the other House by the Prime Minister, and which was grounded, as it appears to me, on a misapprehension of facts. I have read a report of the Prime Minister's speech in the debate which closed this morning. I do not wish to give the slightest cause for a debate on the matter, and I will not refer to that speech further than to say that the greater part of it appears to have consisted in a just and eloquent tribute to Lord Palmerston and Lord Clarendon in respect of their course in regard to fugitive slaves, and who, it was claimed, had furnished the precedents that justified the policy lately pursued by Her Majesty's Government. I will not go into that question now; though I trust that an opportunity may occur when I hope to show that those precedents are not so apt and so continuous as may be supposed, and that none of them apply exactly to the present case. For the present, I will confine myself to some allusions which the right hon. Gentleman made to me in very courteous terms, and in which he did me the great honour of associating me with Lord Clarendon and claiming me as a supporter of the present policy of the Government. Mr. Disraeli is reported in The Times to have said, and one or two gentlemen have assured me that the report is not inaccurate—
  "I must call your attention particularly to this East Indies Station Order of 1871, because it embodies in it all the instructions and sentiments of Lord Clarendon in his despatches on the subject."

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  It embodied, and at the same time simplified, but that is nothing. Mr. Disraeli proceeded—
  "But Lord Clarendon, according to the right hon. Member for Bradford, acted without communicating with his colleagues. Now I think I have proof that one at least of Lord Clarendon's Colleagues"—
  I shall spare your Lordships' ears and my own blushes by not reading some expressions complimentary to myself—
  "was aware of what he was doing. The Lord President of the Council became Secretary of State for Foreign Affairs,…. and it is he who sends these instructions to the East Indies Station. It is Lord Granville who sends this Article 147, announcing that' Her Majesty's Minister for Foreign Affairs has decided that slaves coming on board ships of war within the territorial jurisdiction of the country from which they escape, that is to say, within three miles from the shore, should he returned to their owners.'
  Look at this short despatch—I will not venture to call it a letter:—
  "Earl Granville to Sir C. Murray.—I transmit to you, for your information, copies of a correspondence, respecting the results of an inquiry into certain proceedings, complained of by the Portuguese Government, of Captain Sulivan, of Her Majesty's ship "Daphne," off the coast of Mozambique. The particulars of this case will be found at pages 98 to 101 of Class B of the Slave Trade Papers laid before Parliament last Session. I am, &c., GRANVILLE.'
  That shows that Lord Granville sent the whole of the correspondence on the subject of Captain Sulivan, of the Daphne, to our Minister at Lisbon without a single syllabic of disapprobation. He sent it freely, with his sanction and approval. Well, I think I have at last vindicated Lord Clarendon, who, we have been told, never communicated with his Colleagues. But the note was taken up by another distinguished Member of the late Government—the hon. and learned Member for Taunton. He followed the cry; the right hon. Member for Bradford gave the note that Lord Clarendon acted without any communication with his Colleagues. The note is caught up by the hon. and learned Member for Taunton, who states that Lord Clarendon's despatches were kept secret from the House of Commons, who were free from the knowledge of any wickedness of that kind. But the noble Lord who has just addressed the House has fully vindicated the character of Lord Clarendon in this matter, because he has referred to the Papers, which I myself was prepared to quote if necessary, relating to the slave question, which were laid upon the Table of this House in 1871, in which those despatches may be found. What, therefore, becomes of the statement of the right hon. Gentleman and of the hon. and learned Member, first of all that Lord Clarendon acted without communicating with his Colleagues, and secondly, according to the hon. and learned Member, that he so acted without the House of Commons
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  having the slightest inkling of what he was doing? And yet these are the two Gentlemen who have formed the opinion of the country during the Recess. Those are the two Gentlemen who have been parading England and inveighing against the retrograde policy of the horrible Tory Party—the horrible 'Tory Party—who certainly have not yet written any despatches to the effect that they have decided that slaves coming on board our ships when within the territorial jurisdiction of a slave-holding country shall be returned to their owners."
  My Lords, I may remind your Lordships that I stated to the House in the debate on the Address that it had never happened to me to hear the subject of the regulations as to slaves coming on board Her Majesty's ships brought before the Cabinet, and that I had never been called upon officially to give an opinion on the question. Your Lordships will remark from the extracts which I have just read that the grounds on which I was complimentarily associated with Lord Clarendon were—first, that I was aware of what Lord Clarendon was doing; secondly, that I sent Lord Clarendon' scorrespondence to Sir Charles Murray freely with my sanction and approbation; and, thirdly, that it is I who sent instructions to the East Indies Station, I who sent the Article 147, the contents of which you have heard read. With regard to the first ground of compliment, I have to state that privately I never knew at the time that any such correspondence was going on. It was not likely I should, and for this you must take my word. But I have the authority of all my Colleagues for asserting that it never was brought before the Cabinet. As to the second, it is true that I signed the routine despatch formally transmitting the correspondence of my Predecessor on a closed case to our Minister at Lisbon for his information. The noble Earl opposite will, I think, bear me out in saying that hundreds of such routine despatches are sent from the Foreign Office every year, which the Secretary of State issues without making himself fully and intimately acquainted with their contents. I can, however, discover no trace of sanction and approbation unless it is meant to show that my disapproval of a past correspondence—which I believe I never read—on a subject which was closed I was to keep our Minister ignorant of what had passed between Lord Clarendon and the Portuguese Minister.

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  As to the third ground of compliment, with respect to my having sent the Instructions to the East Indies, and to my having sent the now well-known Article 147, I can only say that the Instructions were sent by my Predecessor; that I never sent any Instructions at all; and that the Order issued by the Admiral on the station never came back to the Foreign Office during my time; and I never heard of it till some three months ago, when a gentleman whom I do not know sent it to me as an extract from an Indian paper. My Lords, I think I have stated enough to show that there is not the slightest ground for compliments intentional or unintentional, nor any ground for praise or blame, in connection with my part in this matter. As to Lord Palmerston and Lord Clarendon, I never knew two persons more anxious for the total abolition of slavery. It is one of my proudest reflections that I was introduced to public life by Lord Palmerston, and that my relations with him closed only with his death, and that I was politically and personally associated with Lord Clarendon, one of the ablest, most popular, and successful Foreign Ministers who have ever filled office in this country.
  THE EARL OF DERBY: My Lords, I do not rise for the purpose of raising any controversy on the large subject of the regulations regarding slaves coming on board Her Majesty's ships. I think it was reasonable in my noble Friend (Earl Granville) to wish to make a personal explanation. If he had confined himself to that—if he considered that any statement was made, here or elsewhere, which affected him, and which did not accord with his own recollection of transactions in which he had been himself engaged—nothing could have been more natural than that he should take the earliest opportunity of correcting what he regarded as a misapprehension, and of placing the matter in what appeared to him to be the proper light. But I think that no one, either here or in the other House of Parliament, would have considered what was said in the other House of Parliament last night as any reflection on the noble Earl. What I understand the noble Earl to state is, that the Circular which has been referred to in "another place" never was discussed in the Cabinet of which the noble Earl was a Member, and never
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  came under his personal notice. The noble Earl goes on to deny having any knowledge of Lord Clarendon's Correspondence; on that point I, of course, accept his statement; but I do not understand that the noble Earl denies that he transmitted in October, 1870, to Sir Charles Murray, an official Correspondence containing that expression of opinion, in consequence of which the instructions which have been referred to were issued. I think, therefore, my right hon. Friend (Mr. Disraeli) was justified in saying that the noble Earl had at least official knowledge of the Correspondence in question: since he forwarded it for the information of our Minister at Lisbon. The noble Earl says that he sent that Correspondence in his despatch of October, 1870, without having personally acquainted himself with its contents. That is an explanation I can well understand; but still I think, in the face of that despatch, my right hon. Friend was perfectly justified in assuming that the noble Earl had knowledge of the contents of the Correspondence. If the noble Earl says—" Officially I had something to do with it, because I had to forward it, though I did so without approval or comment; but personally I was not acquainted with it, because I did not look at or read the Papers," that is an explanation we accept, and the accuracy of which we do not doubt; but it is an explanation founded on a circumstance which could have been only within the knowledge of the noble Earl himself, and with which my right hen. Friend could not possibly have been acquainted.
  EARL GRANVILLE: I thank the noble Earl; but he has not said a word as to the assertion of my having sent the instructions to the station on which the Station Order was founded.
  THE EABL OF DERBY: I fully admit that the Station Order was issued by the Admiral on the station, and not by the Admiralty; and that it was founded on instructions issued in the time of Lord Clarendon, and before the noble Earl was connected with the Foreign Office. In that matter of detail my right hon. Friend may have been misled; but his general argument was correct—because whether or not the noble Earl was cognizant of the instructions, yet they had been issued by the Admiralty; and had my right hon. Friend

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  substituted for the name of the noble Earl the name of the First Lord of the Admiralty, he would have been correct in detail as well as in principle. The argument of the noble Earl is that the act was Lord Clarendon's alone, and not that of the Cabinet. We contend that it is one for which the Cabinet of which the noble Earl was a Member must be held responsible, inasmuch as two Members at least of that Cabinet personally concurred in it.

APPELLATE JURISDICTION BILL.
(The Lord Chancellor.)
APPELLATE JURISDICTION BILL.

  [NO. 5.] SECOND READING.
  Order of the Day for the Second Reading, read.
  Moved, "That the Bill be now read 2a. "—(The Lord Chancellor.)
  LORD SELBORNEsaid, he did not rise for the purpose of opposing the second reading of the Bill. He did not doubt that under the circumstances in which his noble and learned Friend the Lord Chancellor was placed he had done the best he could. His (Lord Selborne's) own estimate of the scheme, compared with the schemes proposed in former years, was that it did not come up to the best thing possible; but it was due to his noble and learned Friend to say, that if he (Lord Selborne) had been compelled to frame a measure under the conditions imposed upon his noble and learned Friend, he did not think he could suggest anything better, as far as it went, than the scheme now before the House. He took it that his noble and learned Friend had before him certain postulates from which he could not relieve himself. His noble and learned Friend, when introducing the measure, quoted a passage from a speech of the late Lord Derby in which he was sure all their Lordships would concur. It was to the effect that in the consideration of every question relating to the Tribunal of Final Appeal, the due administration of justice ought to have the first place. Criticizing the scheme now before their Lordships, and comparing it with those which were proposed in 1873 and subsequently, upon grounds entirely independent of its connection with their Lordships' House, he found that it established two distinct Courts of Appeal absolutely and completely separate from each other. There was the first or Intermediate Court of Appeal, and the
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  second or Final Court of Appeal. Counting the Judicial Committee of the Privy Council, there would be three different Courts of Appeal. The Intermediate Court was, for the present and for a period which might be considerable, to be constituted as provided by the Act of last year: with regard to the two Final Courts, they were to retain their present names and form, but were subjected to various changes and modifications. Between the present scheme and those embodied in the Act of 1873, and in the Bill of 1874, there was a difference of the greatest possible importance. The opinion on which he had acted when framing the Act of 1873, was that the best Court of Appeal was that which would concentrate and bring to one focus all the highest judicial elements available, so as to obtain the greatest possible economy, both of time and of power, and also the greatest possible weight of authority for all the decisions of the Court. He thought in 1873, and he still thought, that, whether there were to be two appeals or only one, the Court should be one, every Member of which should be available for all the appellate business, whether the decision on it was to be intermediate or final, and which should have the power not only of deciding appeals brought before it, but of reviewing and reconsidering any judgment of its own which might appear proper to be so dealt with. Such a Court of Appeal seemed to him a better constituted one than one which divided the judicial elements, and rendered one portion of them unavailable for the most numerous, and not the least important class of appeals. His (Lord Selborne's) Bill of 1873 provided that there should be one Appeal Court of undivided authority; but power was given to the Judges to have the first decision of that Court reviewed if they thought it expedient. His noble and learned Friend in his Bill of 1874, instead of constituting one undivided Court, constituted a Court with a First Division to review the decisions given on first appeals by the Second Division: but he did not by that plan destroy the unity and integrity of the Court, because every Judge of the Court of Appeal was still made available, in case of need, for sitting in either Division. By either of those arrangements there would have been an economy of judicial strength in the hearing of appeals, similar to that which his noble and

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  learned Friend had shown to have already produced such satisfactory results in the High Court of Justice established by the Judicature Act. In the Bill now before their Lordships a different plan was adopted. He thought it was to be lamented that this Bill made two Courts of Appeal instead of one, in a way which would prevent any interchange of judicial power. The Court of Appeal of their Lordships' House must always have much less business to do than the First or Intermediate Court of Appeal. The business of the latter must always be very large in quantity, and very important in quality—much larger than that of the Final Court of Appeal, and in his opinion not less important in quality. By dividing the Court of Intermediate Appeal from the Court of Final Appeal, as was done by this Bill, all the Judges who were required for the Court of Final Appeal would be excluded from the First Court. The Lord Chancellor would be practically excluded from the First Court, because he must always preside in the Court of Final Appeal, which would be sitting throughout the legal year. The four Lords of Appeal to be appointed under the Bill, and all ex-Chancellors, would also be excluded from that Court. Under the Act of 1873, all ex-Chancellors who were able and willing would have been effective Members of the Court, by which the whole Appeal business of the country would have been disposed of; because he could not believe that any man who had filled the office of Lord Chancellor, after signifying under his hand to the Crown his willingness to sit as a Judge of Appeal, would have neglected to do so. On the other hand, by this arrangement, the Lord Chief Justice of England, the Master of the Rolls, the Chief Justice of the Common Pleas, and the Lord Chief Baron, unless they were hereditary Peers, would all be excluded from the Court of Final Appeal. Next, with regard to the authority of the Court. The mere fact of Finality was enough to give authority, even if the constitution of the Court was not the best imaginable: but this authority, under the Act of 1873, would have belonged to all the decisions of the single Court of Appeal. Under the plan of the present Bill, the Intermediate Court, which would necessarily dispose of by far the larger part of the business,
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  must lose considerably in point of authority—certainly until the postponed arrangement of his noble and learned Friend came into operation, which would put an end to the fluctuating attendance of Puisne Judges from the different Divisions of the High Court of Justice. By the Bills of 1873 and 1874 no elements were introduced into the Court of Appeal from the Courts of the First Instance except fixed elements and those of the highest dignity—the Chiefs of the Common Law Courts and the Master of the Rolls. Under the Bill now before the House there would continue to be an undefined number of variable Puisne Judges assisting in the Intermediate Court of Appeal, as there were at present under the Act of last year. This arrangement might be called temporary, in view of his noble and learned Friend's plan of eventually strengthening the Court of Intermediate Appeal from another source; but it was likely to last a considerable period, and, during that period, it might tend in no slight degree to discredit the working of that Court of Appeal. He had the less scruple in speaking plainly on this subject, because down to the present time it was admitted, on all hands, that the Appeal business had been well done, and by some of the ablest and most experienced of our Judges. Somebody must select the Puisne Judges of the Courts of First Instance who from time to time would be required to sit in the Court of Intermediate Appeal: and nobody could possibly say that out of so large a number of Judges all could be strictly equal in judicial skill, experience, and learning, or that all would possess equally, for the purposes of appeal, the public confidence. In the constitution of any Court of Intermediate Appeal it would manifestly be desirable to have Judges of the most proved learning, ability, and experience, and those in whose judgment the public at large would have the greatest confidence. But see how invidious it must be to make a selection among the Puisne Judges on that principle, which was the only right one. Having himself filled the office of Lord Chancellor, he knew that it would be impossible for the Lord Chancellor to proceed merely on his own personal opinion. What was the alternative? For the Courts themselves to select the members of their own Divisions who were to attend in the Court of Appeal. This

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  must ultimately result in a system of rotation, which would send every Puisne Judge in turn to serve in each Court of Appeal: or else the Judges of Division must select among themselves; and this would probably be done with regard to the general convenience of their business, rather than with a view to any man's especial fitness. The noble and learned Lord had said, when introducing this Bill, that eventually under his scheme there would be a reduction of the number of Judges of the First Instance; but he (Lord Selborne) confessed that he did not look forward with confidence to the fulfilment of that expectation. The provision for that purpose, which was expressly made by the Act of 1873, was absolutely repealed by the Act of last year: and he found no provision whatever, for any reduction of the number of Judges, in any event whatever, in this Bill. He regretted that his noble and learned Friend had not seen his way at once to a reduction of the number of Judges of the First Instance, which would have enabled him to take some of the more experienced members of the present High Court of Justice, and place them, subject to the obligation of still going on Circuit, when necessary, in the position of permanent Members of the Intermediate Court of Appeal. He might thus have effected at once and in a most satisfactory way the reduction which he anticipated at some future period. He regretted also that this Bill did not, like the Act of 1873, contain distinct provisions for diminishing the expense of the final appeals. Those expenses were, in his opinion, very extravagant, and any system which did not diminish them was to be condemned on that ground. The printing de novo of volumes of matter which had been already printed in the Courts below was most unjustifiable and most oppressive to suitors. As to the fees paid to counsel, he was aware that their Lordships could not undertake to prescribe to parties what they should voluntarily pay to their own counsel—at all events, as long as the fees of counsel were not recoverable by law. If they had been recoverable by law, he did not see why they should not be taxed; as they were not, the House could not prevent parties from paying what fees they thought fit; but their Lordships might limit the sum beyond
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  which the losing party could not be mulcted at the option of the successful party. He should not be satisfied with the working of any appellate system which left these enormous expenses unreduced. Another point, which would inevitably acquire hereafter a greater degree of importance than it had at present, was that relating to the place where the final appeals were to be heard. In this Bill there was a provision enabling Her Majesty to assemble the Court of Final Appeal during the dissolution of Parliament, and it was provided that when assembled it was to sit in the House of Lords. As they were to sit in that House at such a time, it might be taken that they were not to sit in any other place at any other time. At present the inconvenience of such an arrangement might not be much felt by the Bar; but the time was approaching when there would be a general assemblage of all the Courts in a single building remote from the House of Lords; and he anticipated that when that time came all branches of the legal profession would feel the great inconvenience of attending at Westminster, and there would be a demand for the transfer of the Final Court to a more convenient place. It ought also not to be overlooked that the connection of the Supreme Court of Appeal with their Lordships' House might, in other respects, prove an impediment to arrangements in themselves desirable. The case of Ecclesiastical Appeals was an example in point. In respect of Ecclesiastical Appeals, he did not say that any system would be satisfactory to all persons concerned in such appeals; but the Judicial Committee of the Privy Council was open to the objection that it consisted of a large number of Members, of whom those only who were summoned for the hearing of the particular case could take part in the decision of any Ecclesiastical Appeal. If all the Members were summoned, and attended, the tribunal would be one of inconvenient magnitude. Either that must be done or there must be some selection. Of late, all had been summoned; but it must still depend on accidents, varying with each particular case, who might attend. For that, and some other reasons, there was a great deal to be said in favour of the transfer of Ecclesiastical Appeals to their Lordships' House, where the number of Judges was small, and the Judges would

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  be of authority high as would be found anywhere else. Another reason in favour of such a transfer was, that a purely Civil Tribunal was insisted upon, in 1873, in the interest of the Church and the Clergy. He did not himself propose in 1873 to interfere with those Ecclesiastical Appeals: but their Lordships knew that it was then forced on him. A strong argument might, therefore, be made for transferring Ecclesiastical Appeals to the House of Lords, but for a difficulty to which he would briefly refer. It seemed now to be thought best, on the whole, that Bishops should not sit as Judges in Ecclesiastical Appeals; and, accordingly, the present Bill proposed to repeal the clause in the Church Discipline Act, which gave them a place on the Judicial Committee of the Privy Council in cases arising under that Act, and to substitute a provision, like that in the Act of 1873, for enabling them to be summoned as assessors in such cases, whether members of the Privy Council or not. This struck him as being an insuperable difficulty in the way of removing Ecclesiastical Appeals to their Lordships' House. The Bishops, as Lords of Parliament, had the right of voting in that House, and could not sit as assessors in a Court where their powers, by virtue of their position and rank, were those of Judges: and, in this particular class of cases, it might be difficult for them, if they were legally Judges, to reconcile a voluntary renunciation of the judicial office with their sense of duty, as the lay Peers had done in cases which they had no special aptitude to understand. He had now sufficiently dwelt upon the circumstances which in his view made their Lordships' House not the best Court of Pinal Appeal; and, as this was the last occasion on which he should think it necessary to address their Lordships upon this subject, it had been his wish, while acquiescing under protest in the present Bill, to place his opinion once more, and finally, on record. On the political part of the question, his words should be few. He supposed that—whether rightly or wrongly he should not express an opinion—political considerations had had much to do with the present Bill. He had admitted that, if the jurisdiction of their Lordships' House were to continue, the proposals contained in the Bill might, on the whole,
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  be the best that could have been devised; but, at the same time, he could not dissemble his belief, that the House would not advance its authority, or power, or dignity as a great constitutional Assembly by the arrangements proposed in the Bill of his noble and learned Friend on the Woolsack. It was proposed that a certain number of lawyers should be constituted Peers by Act of Parliament, during the time in which they continued to act as Judges, and that if they, from any reason, ceased to perform judicial functions under the Bill, they might retain their titles, but should lose the power of sitting or voting as Peers. To these Peers by Act of Parliament, chiefly, from the beginning, and perhaps in the end altogether, the power of administering justice in their Lordships' name, whether their Lordships were in Session as a House of Parliament or not, was to be committed. The illusion of a connection, once real, but now unreal, between this branch of the Legislature and the administration of justice, was sought to be perpetuated by a new Parliamentary Court, presided over by a new species of Peers, the creation, not of the Royal Prerogative, but of the Statute law, which would represent not their Lordships' traditions and immemorial privileges, but this entirely novel legislation of 1876. He would not dwell upon some minor questions, which the Bill, as it stood, did not solve, but which required solution. Were these new Statutory Peers to retain their offices and salaries, if they should be made hereditary Peers? Could they, while holding those offices, be made hereditary Peers, under a Bill which so exactly defined the kind of Peerage which they were to have, and said, that it should not descend to their heirs? What was to be the status of their children, by whom their honours could not be inherited? Why, if there was to be any such new class of official Peers, was the tenure of their Peerages made different from that of the only existing official Peers, the Bishops, who ceased to be Peers altogether, and for every purpose, when they resigned their offices? All these questions might seem unimportant in themselves: but they were not unimportant with respect to the operation of a Bill like this upon the political position of their Lordships' House. Whether such legislation as this would be satis-

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  factory to those, whose zeal for their Lordships' privileges had now succeeded in setting aside the settlement of 1873, remained to be seen: his own view was, that their Lordships' dignity and political importance could not gain, but might possibly lose, by such legislation. He had himself voted for a similar measure, not without reluctance, but under the pressure of the wish to provide for the duo administration of justice with as little disturbance as possible of the associations connected with their Lordships' House, more than 20 years ago, in the House of Commons. Twenty years, however, could not pass by, and leave the state of such a question as this unchanged: it was one thing to attempt in vain to make an imperfect step in advance, and another, to make the same step backwards many years afterwards. Still, as the experiment was now to be tried, he could only say, that he desired, as much as any man, that it should succeed. The Court, which was to be now established under the name of the House of Lords, would not, in his opinion, be the best possible; still, he did not doubt, that it would be a powerful and a good Court: and if it administered justice well, the respect and reverence which the people of England were always ready to show, even under far less favourable conditions, to the administration of justice, would gather round it, and it would be strengthened, from day to day, by the authority and finality of its decisions. He did not yield, even to his noble and learned Friend on the Woolsack, in the earnestness of his hope—since the plan which he thought better had been overthrown—that the arrangement now proposed might fulfil the expectations, which his noble and learned Friend had formed of it, and give satisfaction, for many years to come, to the House and to the country.
  LORD DENMANsaid, he was surprised that the noble and learned Lord (Lord Selborne) had not proposed Amendments in Committee to this Bill. He had truly said that the Bill in 1856 had led to no results; and he (Lord Denman) wished to prevent the House from repeating its concessions. In his speeches against the Bill he had advised that the creation of Lord Wensleydale should be made hereditary; that Lord Kingsdown, then Mr. Pemberton Leigh, who had twice refused a Peerage,
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  should receive one. Both these steps were adopted. He had also dimly shadowed forth the advice that Sir William Erle should receive a Peerage. It was true that the Lord Chief Justice (Tenterden) would not receive a Peerage till the salary was fixed at £10,000 a-year. It ought never to have been reduced, as all patronage was abolished, and he himself might have now been Chief Registrar of Deeds in Middlesex, if Sir Thomas Denman had not voted, in 1830, for a general registry. He, when Attorney General, in 1832, proposed that the retiring pension of Chancellors should be £6,000 a-year, and it certainly would be an anomaly if two Peers for years who might never have been on the Bench should receive £6,000 a-year for services, whilst a retiring chancellor, even if sitting daily in the House of Lords, had received only £5,000, and a retiring Lord Chief Justice or Lord Chief Baron would receive even less. He disapproved of the system of only one spokesman delivering judgment in the Privy Council, which, though strong, was like a powerful steam engine—which had only one whistle. There were already two powerful Courts, and errors of the Privy Council could be corrected by Act of Parliament, and any discrepancy in the law be corrected. There was no danger of any lay Peer being allowed to vote, and he mentioned having been on a Committee of the Whole House, and having tried to vote on a case of Bain against Fothergill, he had read the opinions of the Judges, and also since a correspondence between an eminent counsel, Mr. Rand, in the United States, and the opinions of Lord Chancellor Kent and Mr. Justice Story were quoted. The Judges in England had been divided in opinion. The case of Bain V. Fothergill almost authorized any person to offer an estate for sale, knowing an insuperable obstacle to the completion of his title. Lord Eldon had said—" But you must look to principles, if cases had not entirely obscured them."—[See Campell's Lives, v. 7, p. 644.] He (Lord Denman) was convinced that the lay element was of the greatest importance, and referred to Sir J. Stuart's and Lord Romilly's opinions. He mentioned also that the expense of appeals had been mentioned, but that the entire kingdom of Scotland were content to incur that expense rather than change the tribunal.

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  It had been said by The Times that the new Appeal Court would no longer be the House of Lords. In Ireland a preference was given to it as an Appeal Court. And he mentioned a case in which a poor man had thought himself much aggrieved, his former counsel, Lord Romilly, had said he would support the case if brought by some Peer before the House—he inquired of a gallant officer then aged 85, who was mentioned by the appellant, and found that it was not Sir John (then Colonel Aitchison,) but a Committee of the Guards who had removed the mess from his hotel. And he had also seen the venerable Lord St. Leonards, who assured him that everything had been perfectly regular, and that he had abstained from voting or influencing any Peer to support his judgment as Chancellor of Ireland. Though present. Lord Romilly did not say a word, and Lord Selborne said that he thought the case had been treated with discretion. The appellant had wished that the late Bishop of Llandaff (Dr. Copleston), attending on the appeal, as well as the present Lord Blantyre, had taken part in the proceedings. He (Lord Denman) was glad that he had taken this opportunity in the lifetime of those venerable personages of ascertaining the truth. He hoped that the sons of noble Lords would be brought up to a study of the laws, and be able, if they heard the whole of a case as they ought, to decide between any two Law Lords who were bound openly to give their reasons.
  LORD HATHERLEYdesired to state his reasons for entering his protest against the mode in which his noble and learned Friend on the Woolsack proposed to constitute the Court of Final Appeal under the present Bill. He might mention that he and Baron Bram well were among the first to suggest the fusion—not of Law and Equity, but the fusion of the Courts which administered Law and Equity, and they had heard on the highest authority that the new system had worked satisfactorily. Now, what would be one of the consequences of re-transferring to the House of Lords the final Appellate Jurisdiction? It would be this—that they would have two Courts of Final Appeal—this House and the Judicial Committee of the Privy Council. Well, the latter dealt with appeals from
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  all parts of our Colonies, including those where the law was identical with that of England. That being so, the Judicial Committee of the Privy Council might come to one conclusion on a point of purely English law, and the House of Lords on identically the same point might come to an opposite conclusion; and this, though it might not be productive of any great evil at the present time, could not be regarded as a satisfactory state of things. The next points with reference to the jurisdiction of their Lordships' House had reference to the difficulty of at all times finding an adequate Quorum for the administration of justice—the difficulty of securing continuous sittings—and that arising from the question of expense. With regard to those several difficulties the first two were dealt with by the Bill, but not, he thought, in such a manner as should make them feel very proud of retaining their jurisdiction in name. The first was met in this way—a new variety of Peer was to be created; and the second by a provision that the Final Court of Appeal should be at liberty to sit during a prorogation and after a dissolution of Parliament. If such a Court was to be called the House of Lords, if that would please everybody, and if they could thereby secure a good tribunal, he confessed he was ready under protest to accept such a substituted jurisdiction of the House of Lords; but what was to be the nature of the Peerages to be created? Two Peers were to be appointed for life; but with this extraordinary distinction—that the moment their judicial career ceased their political career was to cease also. Now, he had heard a great deal of late as to the inexpediency of mixing up the judicial and the political functions; but here the two were to be indissolubly entwined, and the moment the person who exercised them ceased to be fit to be a Judge he ceased also to be fit to be a politician; as soon as his judicial thread was spun he was to collapse into a chrysalis state of Peerage. That seemed to be an extraordinary provision, and he did not think it was calculated to add to the dignity of their Lordships' House. Then, again, it was provided that after a dissolution if Her Majesty should be so advised the Lords of Appeal might be called together to deal only with judicial matters—the House would be precluded

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  from sitting—and yet this was to be called the House of Lords! But supposing that the Judicial Committee of the Privy Council were in time to be merged in the proposed Final Court of Appeal, this result would happen—that the Court would have to hear and decide upon appeals from the Colonies. But the Colonies might reasonably be dissatisfied at their Lordships' House legislating as to how their appeals should be heard. It would be difficult to transfer the cases coming before the Privy Council to their Lordships' House. The next point was as to the expense attending upon appeals. Much of that which was printed was matter which had been already printed in the Courts below; and why should it be reprinted in order that fresh copies might be given to those who heard the appeal in their Lordships' House? It might be thought that it would not be in accordance with the dignity of their Lordships' House to read the documents which had been printed for the use of an Inferior Court, and that, therefore, it was necessary that all this expense should be incurred over again. A suitor in a case before the Vice Chancellor and the Master of the Roll, instructed counsel; and sometimes it happened that the same counsel a week afterwards, when an appeal was determined upon, had the same identical brief handed to him, with, of course, an additional fee by way of payment. The printed matter, in like manner, when the case came before their Lordships' House, would be the same as in the Inferior Courts, and would be equally available if it were not regarded as so august a tribunal. The sitting of their Lordships in that House on appeals would make a great difference in increasing the cost of appeals. It was necessary at present to take counsel from the Courts in which they might be practising; and the fees to counsel did not altogether depend upon the particular counsel engaged, because if a brief were given to a barrister who was only called yesterday, he received a "refreshing" fee for every day that be attended at their Lordships' Bar. The result was that the cost of an appeal before their Lordships might be taken to be about 50 guineas a day. A great deal of this expense might be avoided if counsel were not taken from the neighbourhood of their own Courts;
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  but when a member of the Bar was taken from Lincoln's Inn and brought down to Westminster a higher scale of fees was naturally adopted. He confessed he should very much like to see the final appeals brought before one Court, and that Court the Privy Council. It was only an act of justice to the Judicial Committee to state that when the present Court was constituted there were about 380 causes waiting for hearing, and an accumulation of 80 or 90 causes year by year. Since, however, the four salaried Judges were appointed these 380 causes in the nature of arrears had wholly disappeared, and the ordinary Paper of Causes was got through without any of the former delay to suitors. He believed that if the Judicial Committee were made the final appellate tribunal everything that their Lordships desired would be secured. He bowed, however, to the course which their Lordships appeared to be inclined to adopt. He hoped to see one Final Court of Appeal appointed, and he could only regret that it was, in the opinion of the noble and learned Lord, only to be secured by this somewhat attenuated phantom of the House which was to hear and determine the final appeals in their Lordships' House.
  LORD MONCREIFF: My Lords, I naturally look upon this matter from a somewhat different point of view to that which has been taken by my two noble and learned Friends. If this question related simply to the establishment of the best tribunal in this country, I should have had great diffidence in expressing my opinion, seeing that there are many noble Lords who have more experience in matters relating to the law here, and especially regarding the fact that there are in this country various elements for the formation of a good Court of Appeal from among the existing tribunals. But such elements for the formation of a Court of Appeal do not exist in Scotland. At the time of the Union it was thought necessary to provide against this difficulty, and in the Act of Union there is a special clause that there should be no right of appeal from Scotch Courts to any English Court. The proper Court of Appeal, therefore, for Scotland is to your Lordships' House. I cannot, my Lords, refrain from saying that the Profession in Scotland have been very well satisfied with the administration of ap-

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  peals in your Lordships' House; and although many of those who hear these appeals are not versed in the system of Scotch law, yet there is so much attention, so much anxiety, and so much deliberation shown in the investigation of Scotch causes that although there may have been a slight miscarriage of justice now and then, yet, upon the whole, the way in which Scotch appeals have been investigated has given the greatest satisfaction. Perhaps if we had some security that the same care, attention, and deliberation would be given to Scotch appeals in Courts of Law constituted outside this House, it might be that the same satisfaction would be felt; but then I do not see how the difficulty with respect to the clauses of the Act of Union are to be got over. It is the opinion of those in Scotland who are conversant with this matter—I do not say the unanimous, but it is the general opinion—that it is not desirable that we should interpose any objection if the matter only referred to the hearing of English appeals. It was quite competent, of course, for your Lordships to abandon your privileges, and constitute a Court for the hearing of English appeals; but in the present state of matters we very much prefer that your Lordships should have acted as you have done, and have kept in the House the power of hearing appeals from Scotland; and it is unanimously admitted that it would not have been a wise policy to have deprived yourselves of the privileges of hearing English appeals, and have retained that privilege for the purpose of Scotch or Irish appeals alone. On that question opinion in Scotland is, I may say, almost unanimous. It is not for us to suggest how these difficulties should be encountered; but after all the statements which have been made, I must say that I very much prefer the proposition of the noble and learned Lord on the "Woolsack to any other which has been suggested in previous Bills. It may be true that so far as the jurisdiction of the House in legal matters is concerned, your Lordships have retained but a shadow or phantom of jurisdiction; but even shadows and phantoms are sometimes not without their force. My Lords, the very atmosphere of your Lordships' House is filled with phantoms and shadows of important constitutional principles long established in this country;
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  and although it may be true that the Appeal Court of the future may be the child of the Legislature, it will nevertheless remain the Court of Appeal to the House of Lords, and will continue faithfully to administer justice in the same manner and with the same satisfaction to the people of Scotland as your Lordships have hitherto administered it.
  LORD O'HAGANsaid, they owed thanks to the noble and learned Lord on the Woolsack for the promptitude and decision with which he had addressed himself to this subject. The reduction of the fees of that House, the place in which it ought to sit for judicial purposes, and other points which had been mentioned in the conversation, might very well be discussed in Committee; and he did not propose at this stage to discuss the merits of a measure, which was a graceful concession to the general opinions and desires of the Three Kingdoms whose highest interests it would so materially affect. It was right in principle and sustained the time-honoured jurisdiction which their Lordships somewhat rashly consented to part with; and the changes proposed would give to this House sitting judicially a permanence, efficiency, and continuity of action such as it never before possessed. All previous authority was in favour of the principle of the Bill. The Reports of the Committees of 1856 and 1872 suggested the practical modifications which it aimed to effect; and he believed the measure was worthy of the acceptance of the House and the approval of the country.
  TUE LORD CHANCELLORsaid, that to judge from the number of vacant seats and the tenour of the conversation the Bill was likely to pass without serious opposition, and he was pleased to think it should be so. He thanked his Predecessors on the Woolsack who, still retaining their original views as to the best form of a Supreme Appellate Court, were willing to suggest improvements in this measure, and to accept it as a good one, if its principles must be endorsed. Having on a former occasion explained the principles of the Bill, he would notice only one or two objections which might mislead the public. As to ecclesiastical appeals, the Bill simply embodied a clause which, after great consideration, was passed by this House,

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  and he believed accepted by the other House in a former year—a clause which altered the Clergy Discipline Act, and provided that, while Members of the right rev. Bench might be present during the deliberations of the Judicial Committee of the Privy Council as Assessors in ecclesiastical cases, they should no longer form part of the tribunal; and he had done nothing more than take that provision and apply it to the altered circumstances. There was not, as had been suggested, a power to borrow an indefinite number of Primary Judges to form an Intermediate Court of Appeal. The Act of last year gave power to borrow one Judge from each Common Law Division; but practically it had never been exercised, and he hoped it never would be, beyond the extent of borrowing one Judge from two Divisions at the same time; and in practice there was no invidiousness in making a selection, because it was arranged to take the Judges in rotation according to seniority, unless that arrangement were varied by agreement as a matter of personal convenience. As to the time when the arrangements contemplated by the measure would be realized, that depended upon the time—which he hoped would be considerable—that the four salaried Members of the Judicial Committee would continue to hold office; he could not well anticipate their removal in this Bill, and he must leave the matter to be dealt with by the Government at a future time. He had himself stated that the expense of appeals to the House ought to be considered with a view to their reduction. The fees were so inconsiderable as to contrast favourably with those of any other Court, and the real sources of expense were printing and the fees of counsel attending at the Bar. It was not the case that all that was printed for this House had been printed for the Court below. In many cases the bulk of what was printed for this House had not been printed previously. There were many documents that were not printed for the Court below unless the suitors chose to print them; and although the rule of the Court of Chancery was to print evidence, there was a great deal of evidence in those Courts, as well as in the Common Law Division, that was not printed for those Courts, and was, therefore, printed for the first time for this House, What did his noble and
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  learned Friend propose? That the prints used in the Court below should be used here. What would be the result? There were from 1,000 to 2,000 cases heard in the Primary Courts to one which was appealed to their Lordships' House, and if the suggestion of his noble and learned Friend were adopted, it would lead to a considerable number of extra copies of prints in every case, whether an appeal was brought or not. He agreed that if any expense could be saved in the matter of printing it ought to be saved; but the cardinal point must be attended to, that the whole subject-matter, with the evidence, should be in print. With respect to professional fees, his noble and learned Friend had gone into calculations as to what those fees amounted to. All he could say was they could not, by rule, prevent suitors from giving large fees if they were so inclined. They might say that the losing party should not have entailed on him fees on a larger scale than would fairly recompense business done; and it would be for the Committee to be appointed to consider what rule should be adopted and what limitations should be imposed in that matter. But he owned he was surprised to hear his noble and learned Friend suggest that some enactment should be contained in the Bill with reference to this point. Then, with regard to the place of sitting, he could not conceive why, if they retained the jurisdiction of their Lordships' House, they should not continue to sit in the House of Lords. To remove to another place would destroy one of the elements of the dignity and prestige of hearing appeals in that House. As to the building for the Courts of Law, which it was said by his noble and learned Friend was advancing to completion, he should liked to have asked him, if he were now present, whether he considered that there was any room in that building available for such a purpose. He very much doubted whether every possible accommodation was not already fully pro-occupied. He would, however, say this—that just as regarded the question of expense, so also with regard to locality, if this measure received the assent of Parliament he trusted one thing would be done with regard to the House. He could speak from sad experience. There never was anything more inconvenient than the Bar of that House for counsel and those

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  who assisted them, and he trusted, if this measure became law, their Lordships would think it necessary to call for some structural arrangement, in order that counsel might be better accommodated than at present. He thought that could easily be done. His noble and learned Friend (Lord Hatherley) had asked what would be the social status of the children of the life Peers. He could only give this answer—No doubt their social status would be duly and properly considered. Then he was asked what would happen if a life Peer received a hereditary Peerage? Why, he would not cease to be a Baron, but he would enjoy all the dignities of his hereditary Peerage notwithstanding. The limitations of his life Peerage would not be transferred to his hereditary dignity. Then it was said, if a life Peer resigned, he should cease to be a Peer. He was made, in the first instance, a Peer for life, but his writ of summons to sit and vote would run only for the time he filled his office of Lord of Appeal. His noble and learned Friend had also said that if this Bill became law it would not be the old jurisdiction of their Lordships' House. He, on the other hand, maintained that, not only would it be the old jurisdiction, but the true and primitive jurisdiction of that House.
  Motion agreed to:—Bill read 2a accordingly, and committed to a Committee of the Whole House on Friday the 3rd of March next.
  House adjourned at half past Seven o'clock, to Monday next, Eleven o'clock.