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

THE SUN LONDON, TUESOAY EVENING, 'SLY 8, 1856'

that might be remedied without any such alteration as that
now proposed. But, Sir, if I were to yield to the learned
authorities which have been euoted iu favour of a change, I
should still remain of opinion that the prop sed remedy must
result in making the tribunal worse than at present. (Cheers )
The Attorney-General spoke of the mischief and impropriety
of a single Lord Chancellor sitting alone in the House of Lords
and overruling decisions which the superior courts at West-
minster, or the Lords Justices, or any other tribunals much
res2ected in the country, have arrived at by large majori-
ties. Let us suppose another case. Let us suppose the Lord
Chancellor, a very eminent man, thoroughly qualified for
the duties intrusted to his charge, sitting in the House of
Lords with two puisne judges, or persons holding the
rank and receiving the pay of puisue judges, and those
two individuals overruling the decisions of the courts of
common law, and of the Lord Chancellor likewise. It
appears to me, Sir, that such a tribunal, instead of being
an improvement, would be worse than the one now in
existence. (Cheers.) I can well conceive that if, as the hon,
and learned member for Suffolk has proposed, there was a
tribunal of five persons—the Lord Chancellor. presiding at
its head, and four judges receiving 6,0001. or 7,0001. a-year
each—such a position might be an object of ambition to men
learned in the lave, and we might have a better court of ap-
peal than that which we possess at present. If a change is
to be nettle, I -should be in favour of such a change ; bet
what I say is, either leave the Lords' appellate tribunal as it
is --either leave that court of justice to make some improve-
meut in its own constitution and procedure—or, if you have
a remedy to propose, let us have a complete and efficient
remedy. (Cheers.) 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 niado. But I say, do
not fill between the two; do not have a tribunal 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 the just
expectations of the country. (Rear.) The tribunal which
is to be formed is to sit in the House of Lords, and that ap-
pears to me to be the only thing in which it can be said to
be the House of Lords deciding appeals. (Hear, hear.) The
House of Lords, as the Attorney-General said, are very
anxious to maintain this tribunal ; but whet is it they are
wishing to maintain ? We all know that 80 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. 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 general
business of the House of Lords. The court of appeal was,
then, either a good or a bad tribunal —hat it was at least 'a
reality ; it was really the House of Lord's Presided over by
such men as Lord Camden or Lord Mansfield, and therefore
not uninstructed with regard to the law, and deciding on these
cases. That 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 is order to make &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.
(Hear, and laughter) Why then the mystery was an-
veiled; the arcanurn, imperil, was at once discovered. No-
body 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 aro
peers, but peers because they are judges. (Cheers.) 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. He sits ,
in another room with two learned lords as Deputy-Speakers,
and, because he sits in the same room iu 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.
(Cheers.) Sir, I hope the home will not give its sanction to
such a sham. (Cheers.) I really think the House of Lords,
if they had not been intent upon this bargain upon making
this compromise would themselves have, been ashamed of pro-
posing such a scheme as this, calling it the preservation of
their appellate jurisdiction. (Hear.) 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 iu which that subject is touched upon. I mean
the creation of peers for life. Well, that is a very grave ques-
tion, and I own that I very much regret the course of the
Government with respect to what appeared to be an unneces-
sary creation of a learned judge, who might have been made
a peer in the ordinary manner, and whom everybody would
have respected as ail hereditary peer.' (Hear ) I say I am
sorry that so unneeeSiary 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 don't think we yet
seethe end of that decision. (Hear.) We know very well
that in the time of Charles 11., as the hou.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 entirely given
up. We also know this house decided, andupon full authority,
that Mr. Wilkes hadno right to a seat ; and in spite of an im-
mense 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, how-
ever, after being stoutly maintained, were, as we all know,
expunged from the journals of the house, and are now uni-
versally acknowledged to be a precedent that ought never to
be followed ; indeed, when a case afterwards occurred some-
thing like it, we pursued a directly opposite course. So I
trust that that resolution of the House of Lords upon the re-
port of their committee of privileges will some years hence
be repealed. 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 Eng-
lish peerage, hut after the lapse of some 60 or 70 years they
found they were mistaken in the law ; they altered that de-
cision, and they seated 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
op the journals of the Upper House. (Hear.) The question
is a grave one, and has been decided, as I venture humbly to
think, without suffieieet 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 Doddridgo as one which did not admit of
doubt. It Iles 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
Doddridgc, went cn to dispute another dictum of this judge
upon peerage law, but he did not notice as a subject for
dispute that the Crown might create peers fur life. Lord
Wynford followed the Lord Chancellor, and stated he should
be very sorry to see the King make peers for Ile, as he
thought it would do great injury to the cons itution, 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. (Hear.) 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 sonic persons to defend the exercise of the
prerogative of the Cruwn. I own I was somewhat sur-
prised that the learned Attorney-General did not appear at
the bar of the House of Lords, in order to defend that which
the Crown had done. (Hear, hear.) But let us sue
the position in which the question now remains. Contrary
to the 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 pos-
sesses? They find themselves, as my right lion. friend (Sir
J. Graham) says, in some embarrassment at setting themselves
so positively against the prerogative of the Crown. What,
then, have they clone? They hew agreed that a certain num-
ber of persons, not more than four, shall hold peerages for
life ; they have mixed up that important subject of life peer-
ages 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 pre-
rogative ?—a question you may well ask. My Lord St.
Leonards, the Lord Chief Justice, and acme 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 dis-
pute in the house, and neither side would have adopted it.
(Hear.) Then the House of Lords sent the bill down here,
and we are asked to accept it in this ambiguous way, and to
make an act of Parliament for the continuance of those two
parties in the Upper Chamber, (Hear.) 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. (Loud cries of " Hear, hear.")
Well, sir, I will now state and I will state very briefly, my
own opinion upon the subject 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
haze 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, how.
ever, not having been exercised for so long a period—not
having been exercised during the good times of the con-
stitution not having been exercised since the Revolu-
tion, 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. (Hear,
hear.) But then I think that the question is a very serious
one—(hear, hear)—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. (Hear.) 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. (Hear,
hear.) There may be gallant admirals and gallant generals
whose services are deserving of the approbation and admira-
tion 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 peers were
fixed at a certain limit, we should not be introducing any
anomaly into the constitution of the House of Lords, because
at the present moment there are in that assembly more than
70 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, containing
men of eminence at the bar, in the naval and military profes.
sions, and in statesmanship, would not only not tend to dimi-
nishgthivee
general it st r e strength—(hear)—and the authority of the House of Lords,
rdes,b.ulzd wouldould,on be'
spirith of the times. (Hear.)
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
icno contrary, tiletnyd towith
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 dig.
nity 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, may obtain a fortune
sufficient for that purpose ; but still we cannot wish to ex-
clude those men from honours which Wellington and Nelson
were proud to gain— (hear, hear)—and upon them we might
confer a peerage for life. I think, therefore, that we should.
derive great advantage from the creation of life peerages,
but I must say that, to confine such creations to four per-
sons in the profesSion of the law, to say that they shall
he life peers, and that no others shall be admitted to that
distinction, would be to place those persons in a most
invidioul position; I will not say iu a degrading position,

but still in a position which many men who aro 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. (Hear, hear.)
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 scats in the House of Lords, be em-
ployed for only a small period of it, and at the sole time they
will suffer no diminution in their salary. Well, sir, I say
that that is a change for the worse. (Hear.) 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 mete 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—(huel cries of " hear, hear")—
and let us establish a tribunal which shall be complete in it-
self, 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, al-
though 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 ; but, above
all, do not, while you aro amending the tribunal of last re-
sort, introduce another very grave and serious subject into
the bill. Do not at the same time attempt to fetter the pre-
rogative of the Crown in a manner 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 tie month of July
would perhaps be a more polite but not 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. (Cheers.)
The SOLICITOR-GENERAL said that every person who
desired to amend our judicial institutions, and especially
to improve the tribunal in the House of Lords, must have
heard with regret the animadversions of the right hon.
baronet the member for Carlisle, and he must say he could
not concur in many of the observations which had fallen
from the noble lord the member for the City of London.' It
had been said that the judicial authority of the House of
Lords was a mere usurpation. Now it was impossible to con-
ceive a greater mistake. The House of Lords had always had
a juri,dictien to pass judgment on writs of error, and had
been the tribunal in the last resort on all questions of law
cerried up from the courts of law in. Westminster-hall. It
was true that after the jurisdiction in equity was settled, a
difficulty arose as to the appellate tribunal from the Lord
Chancellor. From 1685 they had the right to exercise that
power, and it had been conceded to them without any ques-
tion. The question for consideration was whether assistance
should be given to the House of Lords in the performance of
its ditty. It was the character of the people of this country
to endure suffering very long, and it was the character of the
House of Commons, when a remedy was proposed for a griev-
ance, for a great number of gentlemen to quarrel with the re-
medy, and thus leave the grievance unredressed. (Hear.)
One of the inconveniences of the present system of the Lord
Chancellor being the sole judge in the Court of Appeal was
that his various other duties frequently compelled him to
break up his sitting. Another was, that the appeals being on
a variety of subjects, it was impossible for any ono judge
thoroughly to understand them all, and deliver sentences
which would have the effect of the laws of the Modes and
Persians. In the Courts of Que.eda...Bench and Common Pleas
a plurality of votes, and a plurality of minds, were recognised
as their distinguishing characteristics. And it was proposed
that the same •rfile should be extended to the tribunal of last
resort. (Hear.) When Lord Lyndhurst, Lord Cottenbam,
Lord Brougham, and Lord Campbell attended the appeals
there was no call for a different tribunal ; but new the at-
tendance of more than ono or two peers could mit, be secured.
When Lord Eldon was Chancellor he was anxious that Lord
Redesdale should sit with him, and in the time of Lord Hard-
wicko he was always desirous of having the assistance of
another peer. The necessity of a change was now universally
acknowledged. (Hear.) ' The House of Lords was anxious
to give satisfaction, and our judicial institutions would be in
a most unsatisfactory state if a proper appellate jurisdiction
sitctild not be established. Now, what was the remedy to be
resorted to? Deputy speakers had from time to time bean
appointed, and it was desirable to render that perpetual
which had only bee* resorted to on a few occasions ; and he
would ask whether it was not better to accept the proposed
mode of insuring competency and a sufficiency of mem-
bers than to pull down that tribunal and institute
uo one knew what? A most important but absurd
g ot
bhl oe nlo.
lord the
hart. the memimember
scheme efmo
Carlisle—had been suggestedau
for the city of London had eulogised the time when noble
lords, who had not studied the law, wore solicited to take
part in judicial decisions. But the noble lord must recollect
(laughter)—and
the time when petitions were presented by handsome daugh-
ters and sisters, and suitors appealed to lords who had no
knowledge of the yew. The house was asked to reject the
bill. But if they did so, were they prepared to continue the
presentsystem ? There was the greatest possible uncertainty
with respect to the court of appeal of the Privy Council, and
at the present moment the business of more than one court
was suspended on account of the absence of the judges at the
Privy Council on other business. • This inconvenience would
be greatly increased by the proposal which had been sub-
mitted by some hen. members. Was it not better, then; to
preserve than to demolish, to repair rather than to destroy,
an old institution of the country ? (Hear.) The measure be-
fore the house had been spoken of as a miserable one, and
described by other contemptible epithets. No hon. member,
by giving his vote for the second reading of the bill, should
be prevented from making alterations in committee. For
his part he should be very glad to see the basis of the court
enlarged, and that the office should beenade more attractive
to the members of the judicial bench and to the bar. With
regard to the question of the prerogative, he thought that a
considerable degree of confusion existed with respect to the
right of the Crown to create peers forlife..•-Now, no person
could doubt for a moment the right of the Crown to create
life peers ; the question was, whether such peer was entitled
to take his seat in the Houk of Lords. The bill before the
house undoubtedly left the question undecided, but for the
purposes of the act it puts a limitation on the number of peers
to be created. There was nothing unconstitutional in such a
limitation of the prerogative, for a limitation of that kind took
place at the time of the Act of Union b ;th with Scotland and
Ireland. What the house was called upon to do by the
amendment was to say that the House of L rds was wrong
in taking the view it had done with respect to its own privi-
leges, by passing the bill. Were they in a condition to
pronounce this opinion in the face of the universally ac-
knowledged right of the House of Lords to be the judge
of its own privileges ? If the Crown and the House of
Lords were iu accord on this subject, was it right for the
[louse of Commons to step in and say that no such con-
cord or agreement should exist!? He trusted that this
bill, which, by the unanimous concurrence of all those who
had practised in the House Of Lords for many years, was con-
sidered as highly acceptable, would not be refused a second
readily! by the House of Commons. (Hear.)
The house then divided, when there appeared—
For the second reading
Against it 142
Majority for the second reading --49
The bill was then read a second time.

INGUMBERED ESTATES (IRELA.ND) BILL.
The house went into committee on this bill.
Clauses I and 2 were agreed to.
O❑ clause 3,

Mr. WHITESIDE said the select committee en the bill
proposed the court should consist of two commissioners
only instead of three as at present, and ho moved the in-
troduction of a clause in the bill providing for the removal
of 11Ir. Baron Richards, and that the staff of that learned
gentleman should he divided among the otker two. A sav-
ing would accrue to the state of the salary of the commis-
sioners removed, without injury to the constitution and
working of the court.
The ATTORNEY-GENERAL for IRELAND said that
legislation on the subject would be unwise and unnecessary
—for the clause of the act at present in operation limited
the number of commissioners to not more than three. By
reason of the want of judicial strength in the court the ar-
rears were so great that it would be impossible for two
eommissioners to get through its business satisfactorily to
the suitors. He could noLconsent to the introduction of
the clause, which would have the effect of disarranging the
working of the court.
After some remarks from Mr. WHITESIDE, in expla-
nation. _ _

Sir J. GRAHAM expresuel his disapprobation at the
bill being limited in its operation to one year. If it were
extended to two years, the Government in the meantime
would be able to reorganise its officers, and provide a bet-
ter court of appeal. He approved of the clause for reduc-
ing the number of commissioners to two, which would al-
low Mr. Baron Richards to return to his court in the Ex-
chequer and also go on circuit.
The ATTORNEY-GENERAL for IRELAND said he
had no particular wish to retain Mr. Baron Richards as
chief commissioner. He objected to the clause as unneces-
sary, because by the present law the number could be re-
duced to two. The emergency of the business in the In-
cumbered Estates Court rendered it necessary that there
should be three commissioners for the present to get rid of
the arrears of business.
The committee divided on the dense. The numbers
were—
Noes B3
Ayes
—35

Majority.
..

Mr. WHITESIDE then gave notice that on the tkird
reading he should raise the same question again, and also
cdhoawrahcatterheofhtandenwothobleefotrreanastatcetmiopnt.
The bill then passed through committee, and the house
—namely, expose the
resumed.
Mr. WHITESIDE then inquired when the bill was to
be read a third time ?
The ATTORNEY-GENERAL for IRELAND—This
day.
Mr. WHITESIDE—Then that is contrary to the forms
of the house, and I shall object to it. The hon. and
learned gentleman then said that the bill had passed
directly contrary to the sense of the committee, and he
should oppose it in every stage.
MAGD ALEN HOSPITAL (BATH) BILL.
This bill then passed through committee.
ENDOWED SCHOOLS (MOULTON) BILL.
This bill passed.through committee.
COURTS OF COMMON LAW (IRELAND) BILL.
This bill was read a third time and passed.
LUNATIC ASYLUMS (I
gtorlageeharacterise the
RELA.ND) BILL.
The ATTORNEY-GENERAL for IRELAND moved
that this order be discharged.
that he could
this measure,
use
conduct Cot lhoenr eel
of
could
uhUledNGNeox,Epe r
er
ns
express
side
hisn tthw
with
feeling;t nh respect l n
to
and he should oppose the motion, and. move that the bill
be considered immediately.
Mr. HORSMAN said he could not understand that
sudden ebullition on the part of the hon. and gallant gen-
tleman. The fact was, that an amendment that he (Col.
Dunne) had carried, had made perfect nonsense of the
bill, and, therefore, the Government moved that the order
be discharged.
Lord NAAS then moved the adjournment of the debate,
on the ground of the unfair conduct that had been pursued
agree to the adjourn-
ment.wabTsehveewryobuiillnldcwonaysenaient to have bills
by the Government.
money bill, and
poMrpr.:o
nmaHseAdOi
tGißawASatNllsh
saAsotaNildwastaiaeyti.d
ought to have been introduced in a committee of the whole
house.
The debatp.was then adjourned.
'REVENUE (TRANSFER OF CHARGEI,OII,I6L.
This bill passed through committee.
COMMONS ENCLOSURE
This bill was read a third time and passed.
NUISANCES REMOVAL (SCOTLAND) BILL.
This bill passed through committee pro forma.