The Sun.
London, England, 1856-06-04 00:00:00

SECON.O READINGS.

On the motion of Lipl REDESDALE, the following
bills were read a secon time ;—The Antrim and Cole-
raine Roads, Banbridiulunction Railway, Cork and
Youghal Railway, Dewsbury Water, Eastern Union
Railway, Glasgow Court-houses, Jinaresborough and
Patley Bridge Road.
The Duke of BUCCLEVCH presented petitions from
places in Scotland, prayjpg for some measure to do
away with the system otunlicensed pawnbroking.
The Earl of AIRLIE presented some petitions on the
subject of Church rates. ,
APPELLATE JURISDICTION BILL.

On the motion that the house go into committee on
thie bill,

Lord CAMPBELL said, before the house went into
committee on this bill, he wished to correct a misstate•
ment that had appeared in regard to what he had stated
when the bill was last before their lordships. It had
been stated that he had expressed his admiration of
this bill. He certainly approved of the bill, but
the measure was not one calculated to excite
his enthusiasm ; he looked upon it as a bill called for by
necessity. '

The Earl of ABERDEEN said he wished to address a
few words to their lordships-on the subject—not so much
in reference to what was contained in the bill, but to
what was omitted .in it. The noble earl opposite, in
claiming their lordships' support in favour of the
measure being -referred 'to the selegLcougnittee
on privileges.

state of the jurisdiction of that house with reference to
appeals from Scotland. In that declaration he (the
Earl of Aberdeen) thought the noble earl was amply
justified. It was natural then to expect that in the bill
some remedy should be applied to this evil. In the
measure before them, however, no reference whatever
was made to those grievances which existed. Scotland
was not in the slightest degree alluded to in this
bill, and no change or improvement upon the subject
of Scotch appeals was provided for. The only remedy
which he thought should be applied to the evil was to re-
move altogether Scotch appeals from the jurisdiction of
that bouse, and that a court of final appeal should be
established in Scotland, to be presided over by the ablest
judicial authorities of that country, and by men of the
greatest ability and weight. It was a remarkable fact that
in the Articles of Union between England and Scotland
no mention was ►nade of any appeals to this dountry.
On the contrary, the 19th article of the Union stipulated
that all the existing courts of judicature should remain
entire. The noble earl then at some length proceeded
to show the nature and extent of the grievance of which
he complained, and observed that it was absurd to sup•
pose that that house was competent to decide complicated
questions of law arising in Scotland, when the law iu the
two countries differed so widely.

The Earl of DERBY.—As the noble earl referred to
me in the course of his speech, I may be permitted to
say a few words in reply to the charges he has brought
against the report of a committee of which I was a mem-
ber, and which owed its existence to a motion which I
had the honour to submit to your lordships. I will not
follow the noble earl into those antiquarian discussions
in which ho has indulged as to the original mode in
which Scotch appeals were transferred to the Parliament
of the United Kingdom. I do not intend to consider the
reasons why at that time there might be very good
grounds for preferring the decision of any tribunal, even
a foreign one, to that of the Court of Session of Scot-
land. I will not wound the Scotch feelings of the noble
earl by entering upon the reasons. I am not disposed to
lay the same stress as he did on the usages of 150 years
ago, though it is not difficult to understand that at the
period referred to any foreign tribunal would be prefer-
able to the local tribunals then existing in Scotland.
The noble earl stated to your lordships that a very small
portion —he might have said an infinitesimally small
portion—of the people of Scotland would be disposed to
abandon that which they believed td be a valuable boon
bestowed upon them,—viz., the appellate jurisdiction of
your lordships' house. The noble earl objected to that
jurisdiction in Scotch cases, yet admits that the sensible
people of Scotland are, on the whole, satisfied with the
arrangement. For thirty years the noble earl has held
his own peculiar views on this subject. In the commit-
tee he frankly gave expression to those views, and there
as, I believe, in this house he found that he stood alone
in holding them. I will not, therefore, enter into a die-
cusson of the circumstances attending the transfer of the
appellate jurisdiction in Scotch cases to the British
Parliament. My object in rising is simply to notice
the allegations with which the noble earl commenced
his speech, and to express my regret that, after the
full discussion we had in committee, he should have
been induce] to intrude one of the most difficult
and delicate questions involved in the subject of
the appellate jurisdiction into the consideration of
the bill cow before the House. (Hear, hear.) He
says that, in introducing the motion for a committee, I
founded my argument for that motion on the fact that
there was no Scotch judge holding a seat in this house
and forming part of the appellate tribunal. The noble
earl, before he could have made such a statement, mu-t
have entirely misunderstood my statement. I only
stated that as one of certain objections which I had
heard taken to the appellate jurisdiction, on none of
which did I give any opinion. I asked your lordships
to appoint a committee to inquire into the nature of
those objections, so that if they were well founded mea-
suresmight be taken to provide a remedy, but I carefully
abstained from committing myself to any of those objec-
tions ; and though I did say, and say now, that theo
retically it does appear extraordinary that Scotch ap-
peals should be heard by a tribunal not necessarily
containing any Scotch lawyers, or any peer familiar
with the law of Scotland, yet I did not say that that cf
itself would be sufficient to necessitate an alteration in
the appellate jurisdiction of this house. (Rear, hear.)
Now, the committee went very fully and faithfully
through all the objections that were offered to the
existing system, and, I must say, I never attended a
committee of yosur lordships' house in which there was
manifested so strong a desire to arrive at a sound con-
clusion—at such a conclusion as would relieve the Go-
vernment and Parliament and the Crown from a very
considerable embarrassment, and which might lead to an
important amendment in the appellate jurisdiction of the
house. (Hear, hear.) With regard to the necessary
introduction of a Scotch judge as one of the supreme
tribunal, though there was a very strong opinion on that
point by lawyers more especially connected with Edin-
burgh—the writers to the signet—yet there was consi-
derable difference of opinion both on the part of the wit-
nesses who were produced and their representatives of
the state of feeling in other parts of Scotland, besides
Edinburgh. (Hear, bear.) But, supposing his own
scheme of taking the appellate jurisdiction out of
your lordships' house to be set aside, I am at a
loss to understand what is the object of the noble
earl, for he first protested against the necessity of
having Scotch cases brought under the jurisdiction of
this house, and yet he has been standing up for his
country's rights and asserting the claim of Scotch law-
yers to a seat in the appellate jurisdiction of the house.
(No, no, from the Earl of Aberdeen.) That was the
ground on which the noble earl made a charge against
me. He said I had made the exclusion of a Scotch law-
yer from the appellate jurisdiction the main ground on
which I sought the appointment of the committee, and
yet he says, when this bill comes before your lordships'
house, that it does not contain one single word as to the
admission of a Scotch judge ; he says it, is notorious to
every one that there exists a necessity for Introducing a
Scotch lawyer, and this he urges as a complaint against
me, that the committee has said nothing on the subject,
and that there is not insertel in the bill a provision
for that purpose. But I say that the question does not
rest on the vague and indefinite grounds stated by the
'noble earl. He does not deny that in the report of the
committee there is a reference made to the subject. It
is there stated that very different views were held upon
the question in the abstract by different parties, and
that the committee declined to fetter the decisions of the
Crown and your lordships' house by laying down a posi-
tive and invariable rule that one of the two judges who
ought to be admitted to your lordships' house with all
the privileges of peers of Parliament, and with salaries
attached to their office, should be necessarily taken from
the judicial bench in Scotland. (Hear, hear.) There
might be reasons why it would be inexpedient and impro-
per to do so, and why in Scotland itself it might be un-
desirable. It might be that among the legal members of
your lordships' house there would be men already fami-
liar with the law of Scotland, and well qualified to act
as judges in Scotch appeals. It might be also that the
state of the Scotch bench would be Filch as to make the
removal of leading members of the Scotch bench injuri-
ous, and that you might inflict
i greater evil by weak-
ening the supreme tribunal n Scctland than would
be counterbalanced by any strengtlening of the ap-
pellate jurisdiction of the House of Lords. But while
the bill does not provide for necessarily placing a Scotch
judge in the court of appellate jurisd.,ction, it expressly
provides that two members of that tribunal shall be per-
sons who h i
.have filled some high odic's' offices for a con-
siderable space of time, and
in this prevision the judges
of Scotland are placed precisely in the same position as
the judges in other parts of the kingdom. I think that
the committee in making that
i recommendation exer-
cised a sound discretion. It t shotld be necessary,
from the circumstances of any particu,ar time, that one
of the judges selected to exercise the appellate jurisdic-
tion should be taken from the Court of Session in Scot-
land, then the bill recognises the claim of Scotland and
the Scotch judges, as persons every Way eligible for the
office, though it abstains from saying that, necessarily,
any of the judges should come from Scctland. This puts
in a stronger light than before the admissibility of the
Scottish judges, and it is an arrangement which I think
will be generally satisfactory ; thongs, of course, no
proposition that could be ma
. made would 4ve perfect satis-
faction to everybody, while it one that will tend con-
siderably to improve the appellate prediction of this
house. It will give a better chance of having a person
with a knowledge of Scotch law on tie tribunal than
before ; and I must say the objection to the bill comes
with a bad grace from the noble earl, wlo was himself a
member of the committee, and who has had ample op-
portunities of asoortainiug that hie 9?illions are not

shared in by any, considerable number either of the com-
mittee or of your lOrdships' house, and who objects to
the measure because it does not abrogate the appellate
jurisdiction in Scotch cases, and does not insist on a
Scotch judge being necessarily a member of that court
of appellate jurisdiction, (Hear, hear.)
The Earl of ABERDEEN had never meant to say
that, the committee should have recommended that a
Scotch judge should form part of the tribunal. He said
that the administration of the law in Scotch cases by
that house was unsatisfactory, and he further said that
the appointment of a Scotch judge had been recom-
mended by parties in Scotland, but that he saw objec-
tions to that proposal. What he recommended was the
entire removal of Scotch appeals from the jurisdiction
of that house.

Lord St. LEONARDS observed that the noble earl
who began that discussion took it for granted that the
law lords were wholly ignorant of Scotch law, and illus-
trated his a,sertion by referring to a conversation he
had had with a noble lord once the occupant of the
woolsack, who said he knew as much of Scotch law as
he did of the law of Mexico. That noble and learned
lord was a Scotchmen, and, having to decide on the
most important rights of his fellow-subjects, ought to
have known something of the laws of his own country.
(Hear, hear). But he (Lord St. Leonards) was prepared,
from his own observation, utterly to deny the statement
of the noble earl. All those who had to administer the
Scotch law in that house within his experience possessed
it might not be a perfect and intimate acquaintance with
every portion of that law, but an adequate knowledge
of its nature and principles. No man could hope to
rise to the woolsack who had not made himself master
of the Scotch law ; for eminence at the bar could not
be attained without considerable employment in Scotch
cases. An'Englisir counsel pitted against Scottish ad-
-reeates of-the-greatest learning and ability could have
no chance of success, unless previously. grounded in
Scotch law, and therefore the first thing done by a man
intending to practise at their lordship' bar was to ac-
quire a competent familiarity with this branch of juris-
prudence. Scotch law agents ware fully aware of the
pains and study bestowed on this subject by English bar-
risters, and therefore they unhesitatingly ',retain them
ac advocates. Having had to administer the Scotch law
himself, he (Lord St. Leonard's) should feel morti-
fied if the animadversions of the noble earl applied
to him personally ; and therefore after the remarks
that had been made, perhaps he might be allowed to
say that he had had great practice as an advocate in
Scotch suits at that bar, and was once requested by a re-
spectable agent to undertake Scotch appeals generally—
when a promise was made to him that he should have a
brief in every case of that description. Scotchmen must
be supposed to know their own interests ; and their rea-
diness to intrust them to English advocates was some
proof that they did not think those interests were likely
to suffer in such hands. (Hear.) Moreover, when a
law lord was elevated to the woolsack he was not plunged
all at once into the intricacies of Scotch law without as-
sistance. The questions in dispute had all been sifted
before they came up for argument on appeal ; and after
au examination of authorities a legal member of that
house was qualified to give a decision calculated to afford
as much public satisfaction as a judgment pronounced
by any Scotch judge, however distinguished. The ob-
servations of the noble earl had an inevitable tendency—
however remote it might be from his intention—to dis-
gust the Scotch people with the jurisdiction of that
house, and to render them discontented with the tribu-
nals to which they must resort. The public feeling on
the other side of the Tweed was, however, in favour of
the retention of this appellate jurisdiction. It was idle
now to inquire whether that house, at the time of the
union with Scotland, rightfully obtained and exercised
the power of hearing these appeals. Than that no point
could be clearer ; it had been recognised over and over
again in acts of Parliament, and the incontrovertible in-
ference from the section of the Act of Union quoted by
the noble earl, providing that no court in Westminster.
hall should have any jurisdiction over the Scotch courts,
was that the authority possessed by the house over Eng-
lish appeals should extend to appeals from Scotland.
Ail writers on Scotch law acknowledged that when that
house took possession of its inherent right on the pass-
ing of the Union, benefit, not detriment, accrued to
Scotland, the people of which eagerly appealed to that
house to review the decisions of their own court, in
which they could not place reliance. Before sitting down
he wished to say that he should be the last person to
offer a single word in disparagement of Scotch lawyers ;
and if he opposed the introduction of a Scotch judge
into that house, it was nut from any distrust of the
ability of such an individual, but from a belief that the
amount of his practice would be so limited as to lend to
his judgments no greater weightthan attached to the de-
cisions of the courts which he would be called upon to
overrule. (Hear, hear.)

The Duke of ARGYLL said he did not understand
the speech of his noble friend (the Earl of Aberdeen) to
express the opinion which had been attributed to him by
the noble tart opposite (the Earl of Derby) ; but, at the
same time, he was afraid that the speech of his noble
friend would have more effect in damaging the bill than
he had intended. In the discussion before the commit-
tee several witnesses from Scotland were examined, and
they strongly urged that there should be by law one
Scotch judge always present in that house. He confessed
he entered upon the consideration of the question with
every disposition which national feeling could prompt him
to sustain it, but he thought the noble earl would agree
with him, that it was the impression of the committee
that that was not the remedy which they could adopt.
If the appellate jurisdiction was to be maintained over
Scotch cases, in favour of which proposition the Scotch
witnesses were very strong, it seemed hardly possible to
prescribe to the Crown that in all such cases it should
exert its prerogative in favour of Scotch lawyers, and
therefore the observations of his noble friend had really
no reference, nor were, he believed, intended to have re-
ference, to this particular bill. He urged this upon the
attention of the house, and he thought it more important
to do so because of the manner in which the question
came before them. The bill was one of compromise,
consequently it was not canvassed or opposed in that
house as other bills were; and this was the reason that
great misunderstanding out of doors had prevailed.
His noble friend seemed to wish that a new tribunal
should be erected in Scotland ; but, in regard to
that proposal, there was not one single witness in
favour of it—they all thought it would be a most
unpopular measure to abolish appeals to the Howse
of Lords. His noble friend said that the report hardly
dealt fairly with the subject, and alluded to the opin-
ions of Scotch lawyers on the propriety of having a
Scotch judge in that house in his appellate capacity. He
felt sure that his noble friend's remarks had been much
misunderstood. (Hear, hear.)

The Earl of WICKLOW said he was much surprised
that this bill should have been introduced by his noble
friend on the woolsack or by any one of her Majesty s
Ministers, who must stil',lFe as persuaded as ever that
the resolution of the house was no more than waste
paper, and did not alter the law of the country. They
mu ,t, be c-mvinced that her Majesty enjoyed the same
prerogative now as s'ie did when she was recommended
to appoint Lord Wensleydale a peer for life. It was
admitted that the Crown could appoint a peer for
hut without the privilege of having a seat in that house.
Now, supposing that were so, the life peers would be ex-
cluded from haying seats in either House of Parliament,
for the rule of the other house was that no lord of Par-
liament should sit there. He took it for granted that
her Majesty's Ministers intended to propose to Lord
Wensleydale one of these new places ; but supposing he
refused to accept it, he would bo in a worse position
than any other man in the kingdom. He even denied
that Lord Wensleydale would be in so good a position
as Scotch and Irish peers, as they might be elected to
Fit in either house as representatives of the people, or as
representative peers. The bill might be an improvement
of the appellate jurisdiction, but it was certainly accom-
panied with many objections to it.

Lord CAMPBELL said he must acquit his noble
friend near him of all inconsistency in introducing this
bill, for he conscientiously believed that the Crown had
no right to create peers for life and to sit in Parliament ;
and though the Government advised her Majesty to
create such a peer, it turned out they had made a
mistake. It had been ordered and adjudged by the
house that a peer for life, as such, could not sit in
Parliament, and so long as that resolution remaine 1
there was no choice. It being desirable to have
peers for life to assist in the appellate business of
the house, legislation became necessary. With respect
to Lord Wensleydale, he had implored the Government
to create him an hereditary peer, but if they did not do
so he would by no means be in that bad position which
had been represented, for not being a poer of Parliament
he would be able to represent the people of England,
and might stand for the City of London, and might be
returned, and there would not be the slightest objection
to his qualification or to his right to a seat in Parlia-
ment. He had heard the remarks of the noble earl (the
Earl of Aberdeen) with great pain, for in every appeal
from Scotland that came to that house he believed that
justice had been properly administered. If the noble
earl was not satisfied with the present system, why did
he not propose that the appeals should be heard in Edin-
bur,gh ? The answer was plain, he would have the whole
of the cities and counties of Scotland against him, and
he would stand alone in the matter. He (Lord Camp-
bell) would take upon himself to assert that the univer-
sal voice of Scotland was in favour of the appeals being
decided by that house, and he hoped the noble earl
would support the bill, unless he chose to bring in one
to abolish their juri3diction in cases of appeal from Scot-
land.

The Marquis of LANSDOWNE, who spoke in so low
a tone of voice as to be almost inaudible in the gallery,
was understood to say he would not feel himself justi-
fled in giving his assent to the bill if he thought it iu any
way limited the prerogative of the Crown. The present
bill, however, was only an arrangement to meet a diffi-
culty which it was admitted on all hands ought not to
be permitted to go further, and it was not intended to
proceed beyond the present case, its object being to int-
prove the judicial service of the house by enabling the
law lords to have a seat there for their lives. Beyond
the limitation as to the number of the law lords, it left
the prerogative of the Crown entirely untouch-A. The
bill was, in fact, only the expression of a resolution on
the part of the house, their lordships never having re-
garded such resolutions as the law of the land.
Lord REDL'SDALE could not agree with the noble

marquis that the present bill left the prerogative of the
Crown unaltered. So far from that being the case, it
actually extended that prerogative, by enacting that the
Crow❑ might create four life peerages, the holders of
which would be entitled to seats in that house, for the
purpose of strengthening its legal force. Beyond that,
however, the prerogative was left as strictly limited as
I before.

After a few words fr3m Lord ST. LEONARDS,
which were inaudible in the gallery,
The LORD CHANCELLOR said that the bill did not
pronounce any general opinion on the prerogative of the
Crown ; it was designed only to meet a special case.
Earl FITZWILLIAM was understood to say that
their lordships ought not to conclude that this bill settled
the question. One single expression of opinion could
❑ot be regarded as disposing of the whole question of
the prerogative of the Crown, and especially as the house
had not been unanimous in the resolution which ac-
corded their opinion. The present bill, undoubtedly,
might meet the existing„difficulty, but the broad ques-
tion remained to be tried, and would inevitably come
before them again in some form.

Earl GRANVILLE said that, although the present
question was one of some difficulty, be was not disposed
to regard it as one of so hopeless a nature as had been
represented. The facts of the case were, that the noble
lord at the head of her Majesty's Government having
(been informed that it was desirable for the public con-
veuience to increase the number of law lords in that
house, and being aware that reasons existed which ren-
dered it inconvenient to confer hereditary peerages upon
those learned personages who were best qualified to
strengthen the legal force of their lordships' house, the
noble lord at the head of the Government advised her
Majesty to take a step which he was apprised was the
undoubted prerogative of the Crown—namely, to create
peerages for life. A life peerage was accordingly con-
ferred upon Lord Wensleydale, and of that step he
(Earl Granville) entirely approved, regarding it as cal-
culated to add very much to the judicial strength of the
house, and calculated to lead to no inconvenience what-
ever. Such, ho xever' did not appear to be the general
opinion of their lordships' house, for as soon as the facts
became known, notices were given of objections to the
course pursued—those objections being stated to be of
both a legal and a constitutional character. His (Earl
Granville'e) owe opinion on the subject remained un-
changed ; he thought the house was wrong in the course
it pursued with regard to Lord Wensleydale, but whether
right or wrong the house came to a different conclusion.
The party opposite entertained an opinion adverse to
her Majesty's Government on the question, and even a
large number of those who usually supported Govern-
ment thought that it had pursued an unwise course. He
must confess himself obstinate enough to have remained
throughout of his original opinion, and consistently to
have regretted the objections which were taken. Their
lordships, however, appeared to be of opinion that, al-
though the Crown had power to create peerages for life,
it could not therewith confer the privilege of a seat in
that house, and a resolution declaratory of that opinion
was in consequence formally adopted. Under these cir-
cumstances a noble and learned lord had suggested a
ready solution of the difficulty, namely, that of creating
Baron Wensleydale an hereditary peer. He would,
however, appeal to their lordships as to whether the
adoption of such a course would not have been the most
complete abandonment of the question it was possible to
imagine? Her Majesty's Government were most un-
willing that there should be even the appearance of a
difference between the Crown and their lordships' house,
and therefore decided upon referring the whole matter
to a committee on appellate jurisdiction, to see what ar-
rangement could be made on the subject. That com-
mittee met, and he felt bound to add that very little party
feeling was manifested upon either side—all parties con-
curring that it was most desirable to arrive at a satisfac-
tory result, avoiding, if possible, doing anything which
would either convey a censure on the course taken by
the Crown, or that pursued by the house. The committee
unanimously agreed that, for the purpose of strengthening
the judicial service of the house, it was desirable that some
life-peerages should be created • and it was with a view
to carry out that opinion that the present bill had been
framed. The bill, he thought, met the difficulty in the
most satisfactory manner without impairing the dignity
of the Crown or of their lordships' house ; he trusted it
would receive the assent of all parties. And, in con-
clusion, he hoped their lordships would, in a fair and
constitutional manner, come to a satisfactory conclusion
on what he entirely agreed had been a very difficult and
complicated subject.
Tne Earl of DERBY said he could notresist rising to
exprem4 his entire concurrence in the tone, manner, and
statement, of his noble friend opposite. The noble
earl had acted on the present occasion with that fairness
and straightforwardness which he must say had charac-
terised him throughout all the discussions in the com-
mittee, and he ha I placed the arrangement entered into
by the two sides of the house in a position in which he
(the Earl of Derby) thought there would be no differ-
erica of opinion between them as to the desirableness
of coming to a general concurrence ; and he also agreed
with him entirely in the nature of the arrangement
which had been so made, and also generally in the light
in which they ought to regard the passing of this bill.
The house then went into committee.
Clause 1 was agreed to.
On clause 2,
Lord ST. 1/EONARDS proposed fhe omission of the
judges of the Prerogative Court and the Admiralty
Court. He did not think they were properly quallified
persons to fill the office of appellate judges, who should
have a general knowledge of the law of the land.
Earl G RANVILLE said the object of the Government
was to get the best men wherever they could be found
to discharge those high judicial functions. This was
merely an enabling clause, and it was desirable that as
little limit as possible should be placed on the choice of
the Crown.

Lord CAMPBELL said the introduction of the names
of these judges i❑ the clause only enlarged tne circle of
those who were eligible, and it might so happen that one
or both of them might be the best men to appoint appel-
late judges. He therefore trusted his noble and learned
friend would not press his amendment.
Lord ST. LEONARDS consented to withdraw hits
amendment, but warned the Government, unless they
were very careful in the appointments made, they would
entirely destroy the appellate jurisdiction of the house.
(Hear.)
The Earl of DONOUGHMORE sunested that the
judge of the Prerogative Court of Ire!and should be
added. (Laughtr.)
The LORD CHANCELLOR said he had not the
idi.fhtest oljection.
The cause, with the addition of the words " the judge
of the Prerogative Court of Ireland," was then agreed to.
The remaining clauses and the preamble were then
agreed to, and the bill was reported to the house.