The Sun.
London, England, 1856-07-08 00:00:00

Lords. There was, therefore, nothing unconstitutional in
regulating the prerogative of the Crown in the matter of
peerages. He regarded this bill as a means of supplying a
judicial want. It would be a consistent course to uphold
the prerogative within the limits of this act, and at the
same time to limit it in the direction from which danger
I was apprehended. His right hon. friend had drawn such
a picture of those who would obtain this questionable
power, that he (Slr. R. Palmer) could not help suspecting
the reasoning which supposed that, under such a bill, they
would go on overleaping the barrier till every man would
have the finger of scorn pointed at him who accepted those
honours. and yet the army, the navy, and all the profes-
sions, till they came to that to which his right hon. friend
himself belonged, would go on demanding to have these
honours, such as they were, conferred upon them. Really,
no one would] eccept life peerages unless on the ground that
they were more acceptable to themselves than hereditary
Peerages. The descendants of a man who had accepted an
hereditary peerage without the means of supporting it,
would not look back with gratitude on the founder of this
peerage, and would wish that he had contented himself
with a life peerage. As to the Court of Appeal, it must
;be chiefly composed of lawyers. Now, all experience
showed that you cannot always command a sufficient
number of lawyers ready to accept hereditary peerages.
One reason why lawyers made large fortunes in former
times was that there were moans incidental and irregular
of g.tti ng money, all of which were cut off now. All that
was done now must be by the legitimate means of honest
labour, and the consequence was that very few of those
large fortunes of oil were now built up. Once they were,
there could be no reason for not allowing the Crown to
create an hereditary peerage in that instance. No one
who shoal I go through the fortunes of a lawyer for the
last seventy s ears could fail to see that it would have
been far better if, in most instances, hereditary peerages
had not been taken. Only one colossal fortune had been
raised—that of Lord Eldon. If this was so, it would be
better even for those who should rise to be the ornament
of their profession not to accept hereditary peerages. The
result hat been, that for many years very few hereditary
peerag is hat been conferred upon lawyers. The remedy,
even if Lo 'd Wensleydale's creation had been ac .opted,
must have been imperfect, because there would still have
been no compulsory attendance, while practical, regular,
ordinary attendance of persons willing to give their con-
stant attendance to business, could not be secured with-
out the payment of salaries. Still, he thought that many
of the details of the bill were defective. The number of
judges under it was too small, so that they would hereby
have to apply again to Parliament for a larger measure.
It likewise only gave the judges the salaries of puisne
judges, 5,000/. a-year. These were points which' they
might consider and amend in committee. The principal
was, that they should maintain and improve the judicial
constitution of the House of Lords, and on that principle
he should vote for the second reading of the bill.
Mr. COLLIER admitted that the measure, as it stood,
was imperfect ; but its opponents had none of then agreed
as to what ought te be done, or suggested a remedy for the
existing state of things. That being the state of the oppo-
sition the measure, he looked at the bill and found it a
practical measure, which went some way to meet the evil
with which it proposed to deal. The main grievance in
the present system of the House of Lords was, that'there
was no regular attendance of those who were the judges.
/'The bill proposed to appoint three permanent judges, who
were always to attend the sittings of the house, and. who
were to form a tribunal, the sittings of which would be
co-extensivein duration with thoseof the courts from tvhieh
the causes before it came. If the suggestions made by the
Solicitor-General before the committee of the House of
Lords had been attended to, he believed they would have
met all the exigencies of the case, arid if no one else did so he
(Mr. Collier) should in committee endeavour to adapt the
bill to those suggestions. He should support the second
reading.
Mr. J. G. PHILLIMORE objected to an argument
which bad been used in favour of continuing the appellate
jurisdiction of the House of Lords, that it combine& legis-
lative and judicial functions, which he declared to be an
anomaly and opposed to every principle of a free constitu-
tier. He urged that the judicial functions of the House
of Lords were a usurpation. In the time of Charles 11. an
attempt was made by the House of Lords to get an original
jurisdiction, which they had to a certain extent acquired
during the Long Parliament ; but it was strenuously op:
posed by Lord Hale. After Hale died, the House of Coins'
mons, rather than see causes decided by such persons as
Charles 11. would have appointed, acceded to the usurps;
tion of those functions by the House of Lords, which were
now talked of as if it would be sacrilege to touch them. It
was the duty of the House of Commons to get a competent
tribunal of appeal by the payment of any sum of money,
but it was bound not to continue to support au inefficient
and inadequate system.
Lord J. RUSSELL—I confess I could have wished to
hear from the Solicitor-General some other reasons in sup-
port of this bill than those which I have as yet heard. In-
deed, 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 unfa-
vourable to the me aura than to confirm those who are anxi-
ous to hear reasons in favour of it. 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 in-
dependent of the House of Lords. (Hear, hear.) The hon.
and learned gentleman pointed out how much better such
.a tribunal would be than that created 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 deter-
mined 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. (Clißert4.) I must confess that would give one a
very bad *ion of the House of Lords, and I cannot but
think it vvuld 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. (Hear, bear, and cheers.) Then
wo were told by the honourable and learned mem-
ber for Plymouth—and I was glad to hear his remarks,
because they coincided with the opinion which I had my-
self formed—that if the proposed -tribunal were to be cre-
exted, not only would 5,000/. a-year be an inadequate salary
ilor the judges to be appointed, but more than two Deputy-
-Speakers should sit in the House of Lords ; and ho added
that unless the salary were larger, and unless two more
members were added to the tribunal, the bill before us
would be a miserable failure. Bat we must take the bill
.us we find it ; and, however much the hon. and learned
gentleman may wish to amend it, I know nit that the Go-
vernment would be prepared to adopt the alterations which
he proposes. (Hear.) lam toll, however, that the hill is
the result of a bargain between the two sides of the House
of Lords, and that we have nothing to do but to assent to
it. Now, instead of inclining me to acquiesce humbly in
such a bill, it does give me some suspicion of the measure
to be told that it is a compromise between two opposite
parties. (Cheers.) In the first place, in spite of the learned
authorities which have been quoted, I have considerable
doubt whether the pr posed remedy is absolutely required.
I am told that the House of Lcrds is unfit to exercise the
functions of a court of appeal, because very frequently the
Lord Chancellor sits alone; because at all times the attend-
ance is uncertain ; because there may be present two ea-
Chancellors, or ony one, or none at all; and, because the
members of the court do not appear iu judicial costume.
Why, Sir, the greater part of those allegations refer to a
state of things which less 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 Cottenhans, as well as of Lords Lyndhurst
and Brougham, who ere still alive; and I think no one can
say that there has not been from Lord Hardwick° down-
wards 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 pre-
sided in the Howe of Lords. If that has been the case, I
am disposed to think, when you are toll by competent wit-
nesses- men, too, who cc mplain of the axis ing system—that
when Lord Lyndhurst presided in the House of Lords and
Lords Cottenharn, 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 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 an i confidence as it has
hitherto been. I agree with the hon. and learned gentle-
man who spoke last, that in the days of Charles 11. the
House of Lords in its judicial capacity was e 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 lam forced to look for a remedy—l
must endeavour to be satisfied with its constitution as it exists
at the present moment. (Hear.) At the same time, it ap-
pears to me that there is great force in what is stated by
several of the witnesses with regard to the Lord Chancellor
sitt ng alone ; but I think, with the Lord Justice Clerk of
Scotland and the Master of the Rolls in England, that an ac-
cOmplished and able man giving his full attention to o 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 of inferior men, though they
may be more numerous. (Hear, hear.) The instance which
has been quot d from the evidence of the right hon. member
for the University of Dublin 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. But the right hon. gentleman does not
stop there, for he goes on to say that Lord Truro, having
mastered the cases having made himself perfectly acquainted
with that act of Parliament, came down to the House of Lords
and delivered a most luminous and elaborate judgment.
(Hear.) Therefore, Sir, it appears to me that your practice
of selecting the ablest man in the legal profession who be-
longs 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 arrangement as some hon. and learned
gentlemen at the present day seem to imagine. (Hear, hear.)
I admit 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 more care and attention, and
with a little more respect to the public, the noble and
learned lordi themselves can manage. 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 judged if the case had,
been adjourned to another day. Again, Sir, great fault is'
found with respect to some defects of manner, and 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. (A laugh.) Now
really, Sir, are wo going to alter the whole jurisdiction of the
court of last resort because one of the judges slaps with his
hand upon the table? (A. laugh.) These are matters which
should be remedied by the noble and learned lords themselves.
They should agree to sit together in judicial costume, if ne-
cessary ; 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 oan come into the House of Lords. (Cheers.) 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 taken away. (Hear.) There is another
point to which the right hen. baronet the member for Carlisle
has adverted, and which I know engaged the attention of
Lord Cdttenham. That noble and learned lord thought of re-
commending that a judicial committee of the House of Lords
should sit during the recess of Parliament ; that at the open-
ing 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 that, during a period of
two or three months, most useful forjudicial purposes in other
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