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

THE RETURN OF THE GUARDS.

In reply to a question from Major BARING,
Lord PALMERSTON said the Guards, on their en-
try on Wednesday into London on their return from the
Crimea, would march from the railway station to Char-
ing-cross, along Pall-mall, in at the gate near the Ger-
man chapel, and inaugurate, as it were, the opening of
the road through the park to the public ; pass in front
Of Btickingham Palace and up Constitutioh- Hill to
Hyde Park. He was unable to say at what hour the
Guards would enter London, but it would be early.in
the day. The details were arranged by the Quarter-
rnastn-General, but the Government was answerable
for them.

ing to themepsid-rerviing of the bill, to provide the only
practical remily fir an admitted evil which,lay in their

Mr. BOWYER then rose, pursuant to notice, to move
that the bill be read a second time that day three months,
-end proceeded to comment at some length upon the unsa-
tisfactory characterof the House of Lords as at present -
constituted, as a court of appeal, adducing in support of his
argument the well-known fact that the Lord Chancellor
often sat alone to pronounce a judgment upon cases in •
which the appeal lay against a decision which be himself
had previously proeouneed. The hon. and learned gentle-
man then referred to the provisions of the bill, the'operatien
of which he contended would, be to create a great constitu
tional change in the character of the Upper House, by
dividing its members into two classes—hereditary peers
and peers for life. That he conceived to be an alteration
so important that be did not think it ought to obtain the
sanction of the-house under cover of a measure which pro-
posed simply to deal with the appellate jurisdiction of
the other breech of the Legislature. Another objection
which he entertained to the bill was, that whereas that
jurisdiction_ woe regarded as being , exercised by the
" Queeu and her Parliament," it provided that the Lard
Chancellor and the new deputy speakers might hear ap-
peals out of Session—thus interfering with a constitu-
tional principle which stated that Parliament could
not be divided in point of time. He might also ob
serve, that he looked with no inconsiderable degree
of apprehension 4t the probable operation of the
words at the end of the sth clause, to the effect that
the proposed tribunal might not only deal with appeals
and
.writs of error, but with "all matters connected
therewith," duriog a'period when Parliament might not
happen to be eittieg. Those words opened the way to
encroachments open the privileges of the House of Com-
mons which he di4 not think it at all desirable should
exist. (Llean) Wkile dealing. with that point he might be
permitted to ask whether the new tribunal would bee en-
'abled to sit during the period which must elapse between
the dissolution of ens and the assembling of another Par-,
!lament? If such were riot the case great inconvenience
might be the restlt —an inconvenience for which he
thought some remedy should, if poesible,be provided. The
learned gentleman then referred to' the various function-
aries whom it w§kpioposed should be eligible to be/selected
as deputy sped re, stating his objection to the inclusion
among the number of the judges of the Admiralty and Pre-
rogative Courts, upon the ground that the eases with
which the new tribunal would be called upon to deal were
not such as usually came under the consideration-of those
judges. He also, assuming that one of the new function-
aries was' to be a Scotch and one a common law judge:—
pointed out the absurdity which in his opinion would
result from submitting appeals from the ‘Lords JuStiees
to' a tribunal upon which there would be only
1 equity judge ; • from 10 common laeS judges, ein cases of
writs of error, to a tribunal upon which only, L common
law judge -would preside; and from the 15 judges of
Scotland to a tribunal upon which there wonld he only
one yerson conversant with Scotch law. He would next
point out' what he considered the great constitutional
,defect in the bill. It would continue the existence of
two courts of appeal in this country—the House of Lords
and the Judilal Committee of the Privy Council. He
believed that any measure which would leave that state
of things undisturbed would necessarily be unsatisfactory.
The existence of two co-ordinate courts of appeal was
more objectionable in this than in any other country, be-
cause we had no comprehensive code to guide our judges
in teeir decisions. A considerable portion of our law was
made up of decisions of the judges, and of late years they
beeline ined —and iocli:,ed very properly, as he thought
—to the practice of looking more to substantial justice
than ,to technical forms. But that very practice had ren•
dered our jurisprudence less fixed than ever, and he
believed that people in general had no idea how arbi-
trary the power of our judges had become. Our law we.,
ve. present in a transitory state ; the boundaries between
law and equity were not so distinct as they had been ;
and the tendency of our judges was to unite the two sys•
teens as much as possible. In such a state of things the
ettahlisliment of a single appellate tribunal, which would
give fixity to the law, was peculiarly desirable ; and •
without it he feared that it would be vain to attempt to .
make any comprehensive consolidation of our system o 1
jurisprudence. He felt persuaded that, without the
Court of Caseation in France, the Code Napoleon could
never have been successfully administered. The hon. and
—learned gentleman (the Attorney-General) had asked
what course they could adopt fur improving our appellate
system if they were to throw out that measure. Now, in
reply to that question, he (Mr. Bowyer) had to state that
au obvious remedy could, iu his ',pinion, be devised
for the evil which they then wished to remove. He
would propose that a supreme court of appeal should
be appointed, consisting of five of the best men to be
fount on the bench and at the bar, and that to that court
should be transferred the appellate jurisdiction at present
exercised by the House of Lords, as well as that exer-
cised by the Judic;al Committ• of the Privy Council.
He could conceive only one objection t, that scheme, and
that was, that it would lead to a considerable outlay.
But he did not think the House of Commons woull
grudge any sum which might be fairly expended in eda-
blishing a thoroughy efficient appellate system is this
country. He would further suggest that the expendi-
ture to be thus created should be partially met by re-
moving a judge from the Court of Exchequer and' an-
other from the Court of Common Pleas. There could be
no doubt thatehe county c 'tate had of la,,e years con-
siderably lessmed, and might be expected hereafter fur-
ther to lessen the amount of business transacted in- the
courts of Westminster Fall; and he did not think that
airy inconvenience could arise froin diminishing to
the extent he bad stated the judicial strength
Court-of Common Real and of the Court of Ex-
chequer. He would further make the proposed new
court a court of criminal appeal. At present a man
might appeal from a judgment in which a small sum of
money was involved, but he hal no right of appeal in a
case in which his life was at stake. The only remedy
left to him was a writ of error, and that could only be
applied in case the error was apparent on the record.
But there might be error apparent, and.yet a man might
be substantially guilty, and ou the other hand, there
might be no such error, and yet a man might be really
innocent. Appeals on the merits of a capital case could
only be addressed to the Home Secretary, who had thus
irnpoeed•upon him a racet invidious office, aud one which
it was impossible that he could be the person best quali-
fied to discharge. It appeared to him (Ur. Bowyer)
that a great improvemeet would be effected in our judi-
cial system by the establishment of a court of appeal
which. would have the power of granting a new trial on
cause: shown in criminal cases. He trusted he Lad shoWn
that the bill would be inarlequate for the purpose -a hick
it was intended it should accomplish ; that it was replete
with ab urdities on the face of it ; and that the working
of it would be scarcely, f at all, more satisfactory than
the working of the system it was to supersede. .He
might be asked whether the measure ought not to be
accepted as an experiment and as an instalment of right.
BUt to that question he should reply in the negative. If
an abuse were left undisturbed it constituted at least a
good ground for working on with a view to obtain a
complete and comprehensive remedy. But if it were par-
tially dealt with it would only impede the further pro-
gress of legidation. He bad to move, in conclusion,
that the bill be read a second time that day six tneuths.

Mr. IL PHILLIMORE seconded the amendment. Ho
did not think they could properly consider, at. that period of
the session, a bill which, for novelty and importance, was
almost unprecedented in the history of our legislation. It
was universally admitted that the appellate jurisdiction of
the House of Lords' required amendment. His hon, and
learned friend the Attorney-General had asked whf.t could
be worse than the present state of that jurisdiction, but he
(Hr. Phillimore) believed that it would b 3 still worse to
pass a hasty and ilt-considered measure, which would ren-
, der perinanent evils of which everybody complained. One
of the objects of the bill was to sanction the appointment
of life peerages of a very peculiar character, and limited to
one -profession. The members of the House of Commons
I ought not to conceal from themselves that the effect of, the
measure as regarded life peerages would be practically to
limit the peerage in favour of thejexisting House,of Lords,
and he could not help looking upon, such an innovation
with groat jealousy. Many of them had perhaps road the
remarkable debates of the year 1719, in the course of which
Sir 11. Walpole had succeeded, after an admirable display,
of eloquence and reasoning, in inducing the House of Com-
mons to throw out a bill which had passed the Honse of
Lords, having for its object to limit the number of mem-
bersnf that house. It was true that the present measure
was of a different chardcter, but he believed it would lead
practiCally to the same result. He would ask the supportais
of the bill whether they thought it would be wise to rest
the right to the peerage upon the possession of wealth
alone. For his part, he believe that if_the principle had,
always been adopted the British House of Lords would not
be what it was—the oldest legislative body in the world.
In considering that measure they were bound to inquire
:into: the foundation of the 'appellate jurisdiction of the
House of Lords. His first objection to the bill was, that
it left untouched the great anomaly a the existence of
two supreme tribunals of appeal in this country. How
came it, ha would ask, that one of those tribunals had gra-
dually won, while the otherhad gradually lost, the respect
and confidence of the public ? That was the first question
they had to answer. The next question to which they
ha l to direct their attention was, whether it would be
possible to amalganSate those two jurisdictions, or whe-
ther they would be obliged to vote 'O,OOOl. a-year for two
deputy speakers; in order that the House of Lords might
be able to continue to eiercise that jurisdiction which
had been described in language so depreciatory by his
hon. and learned friend the Attorney-General ? Let it be
remembered that the House of Lords bad only obtained
their jurisdiction in matters of equity in the year 1675,
after a long struggle, and he would venture to add without
the shadow of right. He had further to observe that up to
the year 1769 that jurisdiction had been exercised with the
concurrence of the judges as assistants. It was true that
the jtidge's had not, voted, although it was the opinion of
no less, 'an authority than Lord Somers, that Privy Coun-
cilhirrhail a right to vote with the Lords, and that he con-
sidered the judges as ancillary to the House' of ,:Peers, and
that the two subsisted together. The bill did not carry
out the doctrine of Blackstone, that the members of the
other house were entitled to vote byilie right of peerage.
It did not state in terms, it was true, that lay peers were
motto tote on judicial cases, bat it stated that in effect
and it therefore abandoned altogether the principle of an
hereditary jurisdicton is the House of Lords, while it set
up' another and au infeiior 'court instead of that house.
He fouud that at as late a period as the year 1786 the lay
peers hid divided ou a judicial question of the greatest
importance, in which the late Bishop of London had been
plaintiff, and in which Lord Thurlow had carried his opi•
nion by 18 votes against Lord Mansfield, who had been
supported by 17. His hon, and learned friend the Attor-
ney-General had told them that lawyers did not at present
make large fortunes, and that they could not wish on ac-
count of their poverty, to receive hereditary pe'bragEs.
Now his hon. and learned friend must be well abld to de-
cide whether lawyers did nor did not at present recgite
very largo incomes'; but he confessed he had heard with
some surprise the statement of his hon. and learned friend
upon 'that poict. It was perfectly well known, at all
events, that Lord Wensleydale, who had received the re-
cent appointment to a life peerage, was a rich man, and I
that he had no son. But how had the Judicial Committee

THE SUN, tiONDON. TUESO/31_1( EVENING, JULY 's IR5e:

of the Privy Council engrossed the confidence of the pubw
lis ? That tribunal was of modern growth ; for, although
the jurisdiction of the Privy Council itself was! of
great antiquity, the present tribunal had been re-mo-
delled at the suggestion of Lord Brougham, when he had
been filling the office of Lord Chancellor. That noble and
learned lord had laid the foundation of the court so wisely
—he had made it so flexible, and at the eaniestinee com-
posed it of eminent judges, that it had since gone on gain-
ing more and more of the public confidence. How coal
the house expect that a similar success would crown the
adoption of fhe present miserable measure ? That measure
would sanction the appointment of two deputy speakers,
with salaries of 5,0001. a year each—the amount of the
salaries of puisne judges—who were to assist the Lord
Chancellor in deciding appeals which might be made from
decisions of ten of the most eminent judges in Westmin
ster Hall sitting in ceror in Exchequer Chamber. He said
that the house ought not to be forced into passing a hill of
that kind at the end of the session. He had great compas
sion for the suitors, but thought that the House of Com-
mons ought not to pass a law affecting the liberties of the
subject and the constitution of the ultimate court of appeal
simply because certain unfortunate suitors would coffer a
year or two. longer than they would otherwise have done.
He admitted it was doubtful what course ought to be
adopted by Parliament ; but there were certain landmarks
by which they ought to_be guided, such as the necessity of
having one supreme court, and the necessity of procuring
as much talent, ability, and learning in that court as could
be obtained. With respect to the question of money, he
apprehended that neither the house nor the country would
grudge any sum that was necessary to secure such a court
of final appeal as would obtain the confidence of the nation.
But if it was doubtful what course Parliament ought to
pursue, it was not at all doubtful what ought to be done
with this bill—a bill which did not remedy one-third of
the evils complained of, and (lid nothing more than skin
over the diseases undo' which it was-alleged they suffered.
In his opinion, the proper course would be to send it to
a committee up stairs, for he had no hesitation in affirm-
ing that the inquiry which took place in the House of
Lords did not exhaust the subject, for many eminent
persons existed who could throw light upon it who were
not examined at all. The house must consider the position
in which it was for the first time placed. The Peers had
presented a bill to supply certain defects which they ac
knowledged existed in that house as an appellate court ;
they desired the assistance of the House of Commons in
framing a measure which would enable theta to discharge
the most solemn trust confided to them by the constitu-
tion. How were they to answer to their constituents or' to
posterity if they did not take the advantage of an opportu-
nity which might nevereoecur again ; if they neglected tip
confer the greatest boon which an enlightened country
could receive, viz., a court of final appeal based upon the
soundest principles of justice to which none would raise an
objection, and which would be received with gratitude and
joy by the whole country? How would they excuse them-
selves hereafter if, in consequence oe a party combination
in the House of Lords, they consented to perpetuate a de -
fective system, or, because some suitors would suffer in-
convenience a year or two longer, they inflicted upon the
country that greatest of curses—a court of judiceture in
the last resort which would bealien to the sympathies and
feelings of the people, and would neither inspire confi- ,
dence nor create respect ?
Mr. WHITESIDE-Sir, the' two hon. and learned
gentlemen who spoke last have contented themselves with
urging all manner of objections to the bill from the first
word in the preamble to the last iu the clauses. Surely, if
the subject is full of difficulty, a gentleman so eminent for
his legal ability as the hon. gentleman opposite (Mr. R.
Phillimore) might have suggested some mode of removing
those difficulties ; and if it is the duty of the House of
Commons to strike out some practical mode of redressing
the grievances admitted, who more fit to do so than the
hon. and learned member for Dundalk ?
Mr. BOWYER --I did so,
Mr. WHITESEDE—The hon. and learned member
amused, and perhaps instructed, the house by a reference
to the French laws, and the practice of the French courts;
but with all respect to him, I should not wish to see either
those laws or that practice introduced into this country.
What the hon. and learned gentleman did was to suggest
a number of difficulties and objections to the bill, but be
sat down without having applied his abilities to solve in
any way the difficulties which he raised. Now, lam not
here to discuss the question of criminal law, or appeals
from criminal law-1 am not here to offer an opinion as
to whether the Attorney-General for Ireland ought to be
empowered to grant a writ of error or not, but with an en-
tirely different question—a question which is quite enough
to engross the whole attention of this house, and one
to which the hon, and learned gentleman would have done
well to have applied his mind. The hon, and learned gen-
tleman' among other things, spoke of the low scale of sale-
rses to be given under this bill,- but that seemed to me no
argument against the principle of the measure. If the hon.
and learned gentleman was seized with a fit of liberality he
might have proposed to increase those salaries in com-
mittee ; and perhaps he would have prevailed upon the
' Chancellor of the Exchequer to do so, if he could persuade
him that by so doing he could procure a greater amount of
ability in the persons to be appointed.. But the salaries pro-
s posed in the House of Lords had been already reduced, be-
cause it was thought they would not meet the views of
some of the political economists in the House of Com•
mons, so there was little chance of success in that direc:
tion. The honourable and learned gentleman also spoke
in high terms of the eligibility of the Judical Committee
of Privy Council as an appellate court. I fully admit that
this is an excellent court, that it has discharged its duties
faithfully, and is worthy of the coatilence which the
public place in it ; while at the same time its members
are cautious enough to suppress any difference of
opinion which may arise between them, so that its
decisions appear to have the stamp of unanimity when
that is not always the case. But the hon. and learned
gentleman who so
,highly eulogised that court did not
condescend to inform the house that the judges of the
Committee of Privy Council are entirely dependent
upon the pleasure of the Sovereign ; he did. not
tell us that ovary eae of those judges might be struck out
of the list to-morrow. If such a court as that is to be made
an ultimate court of appeal, it would indeed be the most
unconstitutional tribunal that could well be imagined. It
does not follow that because a number of gentlemen, emi-
nent indeed for their great abilities-and extensive learning,
are acquainted with Dutch law, with Spanish law, with
Indian law—if there be any such—they should be called
upon to discuss and decide questions of criminal law-
political cases—great cases of equity. The hon. and learned
gentleman assumed, but-he did not prove, that the two
courts of the House of Lords and the Judicial Committee
of Privy Council were co-ordinate tribunals. When was
that, fact discovered? It is true that they both take cog-
nisance of cases in which personal property is the subject
of dispute, but it is a strong assumption that, because they
both decide a certain class of cases, their jurisdiction is
co-ordinate. Nor is it the fact that there is any danger of
the Committee of Privy Council conflicting in opinion with
the House ofsfeorde' for that very question was inquired into
in the House of Lords, and I find itsteted by a very eminent
authority that when there was the least danger or the least
chance of their coming into conflict in consequence of Simi-
lar cases being before the House of Lords and the Judicial
Committee of Privy Council, the latter court stayed all
proceedings until the House of Lords had pronounced an
opinion on the case, and they then took the law as affirmed
by that tribunal. It is therefore entirely an assumption
that the committee o we a great deal to the circumstance of
some of its members being judges of other courts, because
I have shown that they decide in conformity with the opi-
nion of the House of Lords. I now come to the practical
question, and I give the douse of Commons credit for not
indulging in abstractions, but at all times attempting to
solve difficulties in a practical manner—what are we to do
in the present instance? Now, I must say, it seems to me
that there has been a want of generosity in the way in
which my hon. and learnedfriends have spoken of the House
of Lords. They have represented the jurisdiction of that
house as failing for many years. What is the fact ? All the
17 witnesses examined before the Lords' committee, and
among them ware the foremost men in this country, de-
clared that never was there a tribunal • which commanded
more perfectly the respect of the bar and the confidence of
the country. It has given laws to half the civilised worl I ;
American lawyers and writers have passed the highest
et-deviates upon it, and it was proved by all the witnesses
'that at the time when Lord Cottenham, Lord Brougham,
Lord Campbell, and Lord L7ndhurst sat together under
the Chancellorship of the lastmamed noble and learned
lord, no tribunal was more distinguished for despatch of
business, for ability, or for learning. They discharged
their duty to the country with a grasp of intellect, a power
of language, and a display of legal acumen, which it was
wondrous to behold. (Hear.) Is it just, then, that because
one of those learned men can no longer attend, and an-
other is obliged to absent himself in consequenceof illness,
you are to say "this tribunal is no longer what it was; it
is unworthy therefore to exist?" Every gentleman who
was examined before the committee has stated that until
the last two or three years that tribunal was one of un -
equalled excellence. An inconvenience has arisen. How
has it been met? -A question arose respecting the confer-
ring of a life peerage, out that is a question with which we
cannot deal, however eminent mey be the person, and we
all admit his ability, whoit was intended should have been
the recipient ; but with what justice can the hon. and
learned gehtletnau say that it is proposed to appoint two
miserable persons to preside in a miserable court, sled dis-
pose of c iIISOS in a miserable manner, at a miserable rate
of remuneration. If I held that opinion I certainly would
vote, not for referring this measure to a select committee,
bet for relinquishing it altogether. The' principal argu-
ment made use of by the hon. and learned gentlemen who
have opposed this measure is, that the cases will be de-
cided by three persons. But what becomes of that argu-
ment when we find that during the period of which all the
witnesses spoke as being a period when the House of
Lords was considered a tribunal of unexampled excellence
seldom more than three attended ; and no one will deny
that when Lord Campbell attended, before he was Chief
Justice, Scotch appeals were admirably disposed of. Still
but three persons attended. Well, an Act of Parlia-
ment passed to regulate the Judicial Committee of Privy
Council. What did that act do ?" Made three judges a
quorum. If then the oases in the popular court of the Ju-
dicial Committee of Privy Council were decided by three.
judges, and if the cases in the House of Lords, when that
tribunal was one of acknowledged excellence, were decided
by three judges, where is the objection to the cases
brought before the new court contemplated by this bill
being decided by three judges? (Hear.) Some -of the wit-
nesses have pronounced au opinion in favour of five in-.
stead of three being the quorum. I have no objection to
that. The great point should be to have an unequal num-
ber, so that there- shall he a casting vote ; and if such a
gentleman as Mr. Pemberton Leigh could be induced to
enter the other house for that purpose, he would doubtless
be a great addition to the learning and ability of that tri-
bunal. But the bill, which is one of the strictest modera-
tion, has only proposed. two, and to the principle of that
bill I see no objection. Indeed, I can speak from my own
experience, with reference to cases which have come from
Ireland, as to the feeling in that quarter in favour of the
House of Lords being the court of final appeal. Those
cases have been political, equitable, and criminal—they
have involved the highest interests and questions of the
deepest importance, but the fruit of my experience is that
nothing should induce me to give up the right of appeal
to that house. It would ill become me to speak of
O'Connell's case, because in that I was counsel, but I
appeal to the great case of the Presbyterian' ministers,
which affected the interests or the feelings of thousands of
persons, and I ask whether in that and similar cases the
greatest confidence was not felt by the public in the House
of Lords as a court of appellate jurisdiction? (Hear.) The
House of Lords has always had a right to call in the as-
sistance of thejudges of the land, and the bill does nod de-
prive them of that right. The assumption of hon. land
learned members is that the noble lord at the 'head of the
Government, instead of searching for men of the first
ability and greatest eminence to place in high &Zees
*rested by this bill, will look out for men of inferior"
ability, and be influenced by other considerations. Ido
not believe in that' assuuaption. (Hear.) I would ids°
mention that the Court of the Lords Justices really Con-
t

`asief three, because although onlyltwo justices are ap-
eOinted, in ease of difference of opinion the Lord' chan-
cellor is called in and a,sists them. Now on this point I
will just refer to the evidence given by the hon. member
,for Wallingford before the Lords' committee. He says :
" An appeal to the Lord Chancellor sitting alone is, not
satisfactory ; an appeal to the Lords Justices is not quite
satisfactory. It is not because I think the decision is not
:erred, but because I study the way in which the public
look at the matter. I Oink there ought to be four 'or five
judges; five would be a convenient number, but four',would
do ;" and in another place my hon, and learned friend
-stated his opinion that three would be satisfactory. The
hon. and „learned gentleman the member for Dundalk :ex-
pressed an opinion that there ought to be, at least; outs
'ketch judge among the number, but I confess I was sur-
prised at the candour of, the Scotch witnesses who expressed
an opinion that the decisions on Scotch questions were very
ouch better withoutthem' and gentlemen of such eminence
is Mr. Hope and Mr. Bellenden Ker expressed an opinion
in favour of leaving the appellate jurisdiction with the
Flouse of Lords. The writers to the signet have themselves
ecknowle.iged that very great advantages to Scotch law have
risen by the intervention of distinguished English lawyers
in the House of Lords. In fact, not to multiply cases, al-
nest all the witnesses examined on the subject were anal-
sus to retain that jurisdiction. I also am anxious to re-
tain it in the House of Lords for the very best pOssible
reason, because it possesses it, and that is a good Conser-
vative argutsient. The House of Lords has had an appel-
la`e jut/ diction for a long period of time, and if there are
my defects it is our duty to improve but not to destroy it.
If at any time, in consequence of infirmity or length of
roars, three judges are not able to attend in the Judicial
Committee of the Privy Council, it will be our duty to re-
place them. The hon. and learned member says that his
objection to the House of Lords being a permanent tribu-
nal of appeal in the last resort is, because it depends en-
,irely on the volition of individual lords whether they
will attend or not. That is to be cured by the appoint-
ment of two learned. persons as assistants to the Lord
Chancellor, to attend constantly to hear and determine
cases. But it is alleged that in public opinion, such a
,eibunal will not carry the weight and naithotity of the
House of Lords. I believe it will, for I believe that the
members composing the House of Peers will always have
•uch an influence over the judges constituting that court
es to impart to their decisions the dignity of the whole
house, while they will always be able to check any ap-
proach to irregglatity. It is of the greattet consequence
Lhat, the appellate jurisdiction of the house should be vested
in, and discharge by, the whole .body, which it will be in
the persons of these judges. Surely the hon. gentleman
lid not expect to get more perfect, more brilliant,. more
'ominous judgments than had been delivered in that house
during the last half century, when Lord Redesdale and
Lord Eliot sat there. Is thd house of opinion it will
get better men ? I think not. Nor will they be miser-
able judges because they are moderately remunerated
for devoting their talents to their country. Sod
far from objecting to the bill I think that the hone and
learned gentleman should vote for its second reading and
stow us in committee how it can be improved. (Hear.)
It is said that life peerages would be cleated. That is
true ; but yon hear the opinion of eminent authorities,
that if limited in number the adoption of that principle.
may be beneficial; there is no likelihood that the House
of Lords will be deluged with life peerages. Yqu must
give way to the exigencies of the lime. You have reformed
the Court of Ch inceiv--you have created the Judicial
Committee of the Privy Council—you have established the
Court of the Lords Justices ; and I think there is no ground
either for surprise or alarm in this proposition. By
adopting it you will get eminent men, who will not only
increase the judicial strength of the House of Lords, but
who will suggest good laws, and snore, correct those laws,
sent up to them by this house. Considering that almost
all the amendments of the law which we have had of late
years originated in the House of Lords, I am the more con-
firmed in my opinion that I am right in giving my support
to this measure. (Hear, hear.)
Sir J. GRAHAM—Sir, I have listened to gentlemen of
the long robe with great respect, but, inasmuch as you
have been addressed by four legal gentlemen in succession,
conscious as I am of my own incompetency to deal with
questions of so much gravity and importance, I still up-
hold that the House of Commons will always allow gentle-
men not learned in the law to give their opinion upon a
question of great gravity, and T would add of the highest
. constitutional importance. The hon. and learned gentle-
man who has just sat down has passed a swelling eulogium
upon the House of Lords. I imagine that that eulogium
'is meant to apply to its jurisdiction as an ultimate, court
of appeal. He has referred to great names, and hils car-
ried his eulogium back to the time when there were giants
in the law. I shall not differ from him with respect to
the earlier times, but I ask him if, indeed, the Huse of
Lords be so strong in its legal power and legal efficiency,
will he tell me whence seises this hill itself ? Is the House
•of Lords of the same opinion as the hon. and learned gen-
tleman, that its present constitution is satisfactory or such
as to inspire. the public with confidence ? What said the
Attorney-General when he proposed the second reading of
the bill? He said the defects in that tribunal were glaring,
and that it was in consequence of those defects that her
Majesty's Government proposed this bill. Certainly' lam
bound to add that several of the observations made by
the Attorney-General filled me with amazement and fear.
He said, if I mistook not, that although these defects
were glaring, a better course might have been possibly
pursued, and he added as a reason for passing this' mea-
sure that the House of Lords would not surrender its ap-
pellate jurisdiction. I said some of the hon. and learned
gentleman's observations filled me with fear and amaze-
ment. Have we arrived at 'a period when the Commons
of England, not being satisfied, with the inefficient exercise
of the judicial functions of the House of Lords, is called ort
se apply a remedy?' Have we arrived at a polio(' when
the house, a corordinata portion Of I.lse Legislature, is not
to exercise an independent judgment, but is to be coerced
by the assertion of her Majesty's Attorney-General that
because the House of Lords will not surrender its appel-
, late jurisdiction the representatives of the people ;must
consent that a new tribunal shall be erected which, it is
admitted, is not one that will fulfil all the requirements
of such a court? Have we, indeed, arrived at that period?
(Cheers.) What is the meaning of the assertion that this
is not the best measure that can be brought before us ? It
brings to my, mind the observation of the late Lord Mel-
bourne; who said he could very well understand a great
change proposed, but there was one thing which bile
him with apprehension, which was, that it was said,
"Something must be done," an indefinite change, a
change not supported by reason, but pressed as cogent
from necessity, without a distinct idea of what it
should he. Yet I have heard from the lips of the At-
torney-General this evening that the defects are glaring
—that the best remedy is not the proposed remedy—that
the House of Lords'will not surrender its jurisdiction—
and yet that something must be done. The hon. and
learned gentleman says it is our duty, if we reject this bill,
to propose a better measure. It may be possible for us to
do so • but before we do so, as the House of Lords has in-
quired, is it too unreasonable that-the House of Gammons
should ask to inquire also? But I turn from what has been
said by lion: gentlemen about the measure to the measure
itself, and will state the view I am disposed to take of this
matter. The bill presents; itself to our consideration in a
double aspect. It seeks to dispose of the controversy as to
peers for life, and it seeks to uphold the.fiction of the juris-
diction of the House of Lords. A compromise on this sub-
ject has been a matter of necessity, and her Majesty's Go-
vernment found themselves unexpectedly in a difficulty
with respect to the creation of peerages for life, which they
sought to effect, while their, opponents in the House of
Lords also found themselves in a great difficulty, inasmuch
as having . come to a vote against peerages for life, they
were involved in and embarrassed by a struggle with the
Crown on a question of prenegative. Compromise iu such
circumstances, between the two contending parties, was
both natural and inevitable, and the compromise which was
eutered into in this case is, as has been admitted by the noble
lord at the head of the Government, in the nature of a com-
promise to relieve the Government of their difficulty in re-
spect to the creation of life peerages, and to release the Op-
position from their difficulty in relation to their struggle
with the Crown on the question of prerogative. Is there any-
thing extraordinary in this state of affairs? The unanimity
with which, in the House of Lords, this bill was sent down
to us, in my opinion ought to excite the jealousy of the
House of Commons. It is no common-place expression that
insidious alliances are oftentimes more dangerous than
the array of hostile parties. I think that the House of
Commons ought to view with jealousy a compromise based
upon mutual difficulties. But there is nothing new in this
matter. The hon. gentleman behind me referred to the last
00-aasion upon which the question of peerages was discussed
in this house. Then also a bill came' down from the House
of Lords in the year 1.719 to the Commons. It received a
very general support, in the house in which it was moved,
from the government and many of their opponents. Ib was
met by Sir R. Walpole in the House of Commons with,
signal success ; and not only in this house, but out of it. ,
Upon that occasion he published a memorable pamphlet,
which is remarkable as illustrative of the present state of
affairs. He found himself, he says, united with the oldest
of his opponents, and opposed to the warmest of his Par-
tisans—(laughter)—and he thus expresses himself : -"I am
free to own that there is one thing in it which has deserved
commendation, for it has produced the most ,convenient
unanimity among our great men that I have ever known.
It has yoked the lion with the lamb." I don't know whe-
ther the learned Attorney-General and the hoe. and
learned gentleman opposite (Mr.. Whiteside) will recognise
the parallel":—" It has associated men in power with thuso
they have turned out." The hon. and learned Attorney
General will still see bow the past resew oles the present. :
—(renewed laughter) : " Ministers of state are become
patriots, and professed friends of the prerogative the
strongest friends for lessening it." lam almost ashamed
to read a passage from another pamphlet, written about
the same time, by Sir Richard Steele, who also took part
in that political struggle. He says, "It was • suspected
that, there was great influence afloat to carry in the Com-
mons a bill which h'ad come down as a compromise from
the House, of Lords." He describes some member under
the name of Esau, and he says, " He is the greatest traitor
to civil society that ever yet appeared who will contend
for such a bill in the House of Commons, with the assur-
ance in his pocket of being a peer as soon as the bill passes."
(Laughter and cheers.) Ido not know whether that is ap-
plicable to the present state of circumstances, but it is cer-
tainly suspicious to see such unnatural unanimity. (Hear,
hear, and cheers.) I only ,put it as an instance of there
being nothing new under the sun. (Renewed laugh-
ter.) Every line of the bill which we are now dis-
cussing is marked by the feebleness, obscurity, and impo-
tent indecision which is inherent in middle measures.
The principle upon which the bill is framed is clear. Lord
Derby gave us the clue to it when he said, "Can we frame
a bill in such a manner as not to call upon the Government
to pronounce a condemnation of the policy they have up-
held, and on the other hand not to commit the body of the
peers to any proceeding inconsistent -with the stand made
by them in defence of the hereditary ch erecter of the peer-
age ?" (Hear, hear.) Now, that is a frank avowal or the
principle ou which the bill is framed, and leaves no doubt
of the compromise it effects. The prerogative of the
Crown is either limited by it, or, if there be no such limi-
tation, the precedent of a peel ago not of ieheritauce is es-
tablished by it. (Hear, hear.) And what is most remark:
able. is, that such is its ambiguity and obscurity that 'on
consentJain°
is
itt.i. that
Lohh
the
if
its third reading it was iseceie ed in opposite senses by two
classes of its supporters. The Lord Chancellor declared
with the Lotrod
tP fe President
awovuel,da
uh,a v have
Logiven
his
rd
never Chief
would Justice
haveand t
consented Lord s ehtca p7reevroagr
ti
rictl s
recognisedavowed t thathe p
they
nerer would have consented to it if it reco"nisod the pie-
rogative to create peers for life. (Hear, hear.). Either the
majority of the lords were deceived with respect to the
measure, or her Majesty'aMinisters have betrayed the pre-
rogative. (Hear, hear.) / It is adilemma from which there
is no Ole ipe—(hear, hear) -except this—to reject the bill—
(hear, hear)--and thus te, give time for the framing of a
measure, not doubtful an d ambiguous, but clear, patent,
and intelligible. (Hear) The pill is studiously obscure.
Let the house look, for T Instance, at the 4th clause, which

I have read repeatedly, and to the uninitiated it seems to
concede to the Crown the absolute power of creating
peerages for life. It commences by granting the
power to appoint for life two deputy speakers, but
then it goes farther to provide that there shall not be
more than four persons holding peerages for life at the
same time, The plain moaning is that Crown would
have power to create two deputy speakers, and keep uP
two life peerages, chosen eitherfrom the Lords or elSewhere.
Bat I believe the true construction is that it is limited to
two deputy speakers in the first instance; and That the
gross number shall not exceed' four. Then what is the po-
sition of Lord Wens'eydale ? (Hear.) Either he must be de-
signated as one of the deputy speakers, remainink, a peer
for life, or his position will be most anomalous. -(hear.)
He has presented-a petition complaining that the bill will
materially affect a right which he Claims ; and his position
is one which has a claim upon our consideiation. (Hear.)
It is a strange inconsistency that the champions of the
peerage by inheritance should now propose peerages far
life. (Hear.) This is so ; if it is contrary to the duty of the
advisers of the Crown that any peers for life ihould be
created without consent of Parliament, and if it be mall-
mited, then it is open to abuse fir party purposes, and dan-
gerous to the House of Lords. (Hear.) The bill-tee this re-
markable characteristic, that there ought to be a general
concurrence of those who are in favour of peerages for life
and those who are opposed to them in rejecting it, for it
leaves in uncertainty that great question of prerogative.
(Hear.) .1- have the gravest doubts as to the policy 'of peer'
ages for life. • (Hear.) Look to colonial assemblies, and see
there the effect of nominees of the Crown holding in es
upper chamber what are analogous to peerages fir life.
Nothing can be more injurious. Now, an hereditary of
independent peerage (I 'use tho terms as synonymous) are
characteristic of our mixed form of government. There is
nothing else in principle but that second elective chamber,
which is characteristic of republicanism. (Hear.) It is alleged
as an evil that there is too museh of the law element iu the
House•of Loris; that the sons of great lawyers interitiu%
peerages, perhaps, may be without adequate means of sup'
parting the dignity.. The case suggested is extraordinary'
It is to introduce the law peens themselves into the house •
before they have earned in their profession sufficient 10
sustain the dignity and 'independence of their position.,
(Hear.) Poverty is, for the first time, avowed as one °'
the ingredients of qualification for ;the peer age. (Hear, and*
laugh.) What will be the effect of it ? It will brand tbst
life peers with the mark of depend.mce and inferiority. I
will engender the constant hope in the peer for life, urb°
feels himself thus degraded, to work out his independence,
and obtain from the Minister of the Crown the more 11°;
nourable station of the hereditary peerage. (Hear.) It wil
have also another effect. The very title of peer implief
equality. But here will be a degraded class, unequal is
their position, and looked upon by the hereditary peers si
not their equals, on the ground eg their poverty all well s'
their inequality. And what have the law lords done t'a
deserve this indignity ? I cannot conceive any position to
be worse than one in which " favo,ur is to follow fawning,
and when they will have to hang upon the skirts; of the
minister of the day to obtain a more honourable situation'
and to be made equal in dignity to their companions in tbe,
peerage. No Lord Chancellor, if this bill passes, will es'
obtain that hereditary peerage which was won by here
don, by Hardwicke, and by Camden, whose descendell:
are among the most revered members of the House of Pee"'
The only chance the Lord Chancellor will have of oh! ,
ing the hereditary peer ge will be that he is rich or dal
less—not that he is pre-eminent in his profession. Lei
Somers has been mentioned ; he was a poor man when be
had become a most eminent one and such was his noble
spirit that he sat as Chancellor, deciding cases by his learn:
ing, influence, and virtue, while he was content not to he°,
a voice, because he had not then acquired that indepead
ence which wculd, entitle him to an hereditary peereg:
But he never dreamt of a peerage for life. He afterward
earned that independence, and was raised to the .peersgl
which his descendant still adorns. (Hear.) It is said tho
this measure, though it may not be the best that can
formed,is yet at least efficient. But it is said, you lid
the power of creating peers for life to four peeragep. Freu
the very nature of the choice, the deputy speakers:must '
aged men, who have long occupied a prominent stetted
Age and infirmity will rapidly come upon them; and it!,
possible that they may cease to be able to perform the
judicial tunutions, and yet remain peers for life. Thai
f
your difficulty will occur, and you must legislate again' °t
else what becomes of your remedy? You cannot ow;
here. You will find it necessary, if this precedent is Oil;
bushed, to go on, and extend the creation of peers for'',
to the army and navy. Poverty is not confined to tb
law; on the contrary, I believe the law to be a far lu°4
lucrative profession than that of arms, for admirals
generals do not make their tea thousand a year. 1-do
leaders of the-bar never made Larger incomes than. they
now. I need only glance reunerthes house to show tu
they never were more distinguislieda ,Possessing as sauce
talent, and as large incomes as th.ty ever did, they are '1"0
in need of this paltry measure, litniting the enjoyment 1
fame to the short period of a life. But if-the measure,o,
necessary for the law, then; a :fortiori, itialliecessarYist
the army or the navy; ajid if, you establish the preceds4,
you cannot atop here. But then ou will touch the no'e
mainspring of human action: All the highest aspiratte.o
of noble natures--eferything that really is part of, geD.
—is connected with the longing for immortality, the d
to make and to perpetuete a name.
" Ergo ipsas quamvis angetsti terminus zest '
Excipiat (neque onim plus septima ducitnr msltas)
At genusitiemortale manet, multosque per annos
Stat fortune cloinus, et avienunterantur avorum."
That is/the principle which actuates the noblest; spirits,l:,
it
all professions.. (Hear, hear.) ' Then as to politicis,nsen
House of Lords, though it may be regarded as a relli
from the storm, is a, miserable arena to men who 110,
occupied prominent stations in the House of Covell:04
(Hear.) History has taught us this by examples. Hieteff
has taught it to us in that very period to which I b:a
been retorting—the age of Walpole and Pulteney.
know that Pulteney had the opportunity (having 07;1
thrown Sir R. Walpole) of forming an administratiort,e;
shrank from the responsibility and. asked for an earld%
The King was unwilling to grant it, and. Sir R. Wahl)
whom he had displaced, used his influence out of 40/1-0,1
obtain the earldom for him, and having succeededelloP:
Walpole records that when he went home he used the e';
pression "I have turned tho key of the closet upon Wits
(A laugh.) Lord Chesterfield, commenting upon the trs'el
isetion, says that Pulteney "shrank into insignificance s',
an earldom." And Walpole himself, having, after 20 years
ortriumphal power, been raised to the peerage by the tik,
of Orford, we are told that Lord Orford went. up to Pi
&id of Bath and said, "Now, here we are, the two lo°9o
insignificant fellows in England." (Laughter:) yet tlit4
were hereditary peerages. Think of the effect of this ifot,
treat, for decrepid statsmen when it becomes a peeragoi.
life. Row miserable, how degrading will be their. P°9l
tion ! J tell you that if you pass this bill many years viij
not elapse before you mast extend it to politicians;
the days will come when your statesmen—peers for liNe
will stand like the labourers in the parable, saying e,
man bath hired us." (Laughter.) Their political deg,
aeration will be extreme, At present the peerage is ;,";
pidly diminishing, but if you grant peerages for life to
considerahle extent the independence of the House Of
will be swamped in the easiest way. Since the year
29 peerages have become extinct, and only 16 have Dv",
created, sho wing that the number of new peerages bs,,,
been less than those which have expired. Thus the in'',
pendence of the body will be sustained (unless you t 1330
per with it by such amendments as this), both bytd
course of nature and by the constitutional forbearance,
the Ministers of the Crown to augment unduly the 130,%!
hers ef new creastions. But if you break ground in t,up
direction, you will, for a paltry object (so far as the ob.ivo
is avowed), inflict the
,greatese injury, and • cause tb
greatest evil to the co-or :Elate branch of the Legislate;
(Hear.) I now turn to the appellate jurisdiction of ~t,he
House of Lords. There is a fiction and a reality. nilie
fiction is, the appellate jurisdiction of the house.
reality is, the juris•iiction of the Lord Chuncellor-achos%
amid the fluctuations of party chiefly for his activity gs.tb
politician ; and he constitutes the appellate tribunal, W„,lhe
three or four ex-Chancellors chesen in a Similar way.
Attorney-General says the rest of the lords are " mutes t)°,
ciphers." The fiction is, that these mutes and ciphers ele.4.
visa the appellate jurisdiction ; and at the present monse'„,l
the tribunal which has thus avowed its incompetence e°"l
sists of the Lord Chancellor alone. There have been tiulso
when "there were giants," and the house might have hese,
the best tribunal. But we have passed from an age of gias',
to an age of pigmies. Now. I cannot say that one ju4o
sitting alone to reverse decisions of the highest tribunal ,1
the re-dm is satisfactory. (Hear.) A great complaint of tt,,
present system is the uncertainty. The client neverkne,
how the tribunal will be constituted. But what is the re
medy ? Two deputy speakers are to be appointed ; but tll!,
bill contains no ouster of the jurisdiction of the ex.Cll",O
callers, three or four of whotn are always floating about tP.,
house. (A. laugh.) Then there is the Lord Chief Jay'
tice, and there was Lord Devon, who, having been oler;
of the house, was re:..koneti a hew lord. There is no oti',l
ter of the jurisdiction of these law lords ; and the fictioPol
which confines the appellatejurisdiction to the house is
transparent that it escapes through all disguise even
this very measure, for it provides that the appellate jurissr
diction she 1 continue during prorogation ; and it vir-
almost carried that it should continue after a dissolutio°4
(Rear.) Again, pay is said to have become necessary :
exercise the due discharge of. the judicial functions of the
house. While the house maintained its jurisdiction with
out salary, that jurisdiction might strengthen its positive;
but when the law lords are to be hired like journeymen to
do their work, there is 'neither dignity nor honour in it"
and the strength of the position of the house will not
the same as it was when they discharged their ancient here;
diary duties in the ancient hereditary way, with seperio,
ability, and to the satisfaction of the country, withoa'
salary. There is the Judicial Committee of the Dill
Council, who it is agreed by all parties perform their
functions most satisfactorily; and they are unpaid judges'
(Hear, hear.) Let me remark that the second clause limit'
the selection of the life peers, so that in 18i0 it would have
excluded Lord Campbell, Lord St:Leonards, Lord Rather'
furd, and Dr. Lusbington ; and it would now excludelo
Pemberton Leigh, Vice-Chancellor Sir P. Wcod, and one
of the Lords Justices. Added to which it would exclude •
the Attorney-Geneeal and Solicitor-General, as well as 1136
law officers of Lbrd Derby's Government—men equal ie
learning, indepenience, and character to any whO evet
filled those offices. (Hear, hear.) Again, consider the near
ber of the life peers. It is to be three ; although all the
leading witnesses—S,r F Kelly, Mr. Malins, the Solicitor'
General, &c.—agreed that three was the worst possible
num her, and that the number should be at least
(Hear.) If you desire to secure that the three judges show
be men of high standing, you must give.itdequate induce'
went to attract such men ; insteal of which, the salary if
only to be 5000/., that of a puisne judge. (Hear, heir.)
must touch upon another topic, which may be painful to
the legal profession, but my love of truth compels nee t°
mention it. (A. laugh.) Thietill will, if it passes, debauch
both the bench and the bar. It is very rarely that the
Puieneiudges are promoted to the chief judgeships. But
now the Crown will have the power of selecting from the
bench two judges to be deputy speakers and peers for life,
with the prospect of hereditary peerages in reversion'
(Hear, hear.) Quctnydin bene se gesserint will be Well
construed at the Treasury—(a laugh)—and complaisant
peers for life who always vote with Ministers will obtain
the hereditary peerage. (Herr, hear.) The effect of such
patronage will no to debauch the bench, and though the
effect upon the bar will be less direct, it will not be the
less powerful, and the result will be unduly• to trench
on the honour and independence of the bar: I value
highly that honour and independence, believing the bat
to be the champions of freedom ; and I should be Berri
to hold out temptations tending to destroy their indeperW
erica. With regard to the appellate business of the }DUO
of Lords, there are only 70 oases on an average in a yeeq
which cannot occupy more than four months of lege'
labour; and, before you re-constitute the tribunals Y 0
must consider whether additional business should not be
sent to it, eitherfrom the Judicial Committee or the Lorcl4
Justices. All these are questions not to be decided basal,'
in the middle of July, under pressure of a threat that if !
do not pass this particular measure the House of Lora.;
will agree to none. If there is the least spirit in tilla
house they will reject the measure and secure dwelt,
opportunity to consider the subject. (Hear, hear.),
the appellate business of the House of Lords been P.
factorily conducted of late years? We WINO the outlay*"