12 JULY 1873, Page 4



THE dispute which has arisen at the instance of Lord Cairns as to the power of the House of Commons to originate an amendment on the Judicature Bill which affects the privileges of the Lords, is not creditable to the common- sense of that House which is most in danger of suffering in public estimation by showing any want of common- sense. If the House of Commons fails in common-sense, it may be fairly inferred that the public has for once failed in common-sense too. If the House of Lords fails in common- sense, it is likely to be ascribed,—and not, perhaps, unj ust]y, on a question of technical etiquette,—to the special weaknesses of the Order of which it is composed. When the jurisdiction of the Appellate Court was discussed in the Upper House, it was admitted that Scotland and Ireland could not be compelled to come to the New Appellate Court for their final appeals, till they expressed their wish to that effect. It seems that by the Act of Union with Scotland it was expressly agreed that no appeals from Scotland should be heard in our Court of Chancery, Queen's Bench, Common Pleas, or any other Court at Westminster Hall, or any Court "of like nature," a condition which clearly secures to Scotland the right to have its appeals heard in the House of Lords, so long as Scotland really prefers that Court of Appeal. As regards Ireland, in 1780, when the Irish House of Lords still existed, Ireland successfully resisted any right of appeal to our Court of Queen's Bench, and maintained the right of appeal to the Irish House of Lords ; and when that House of Lords was merged in the House of Lords of the United Kingdom, the appeal of course passed to our present House of Lords. These are very good reasons for not proposing to take away that appeal without the assent of Scotland and Ireland. But now the Government are convinced, i.e., believe themselves to have adequate evidence, that Scotland and Ireland, of course as represented by the Scotch and. Irish Members, prefer the new Appellate Court to the House of Lords, and for the very excellent reason for which Englishmen also prefer it, that it will be a better Court, a Court constituted for its legal qualifications, and not by the haphazard process by which the Law Lords are unnaturally "selected" to hear appeals. Lord Cairns expresses his doubt whether it be true that there is this strong feeling in Ireland and Scotland for the new Court of Appeal. Well, if he takes that ground, let him produce his evidence of the want of unanimity, and strike out the amendments of the Commons when they reach the Lords, on the strength of that evidence. But that is not what he is doing. He is doing something very different indeed,—using the imaginary privileges of the House of Lords to defeat the amendments which the Commons propose to make, and perhaps not only the amendments, but the Bill itself. As it seems to us, nothing can be weaker than his plea for these privileges.

Lord Cairns appeals, by way of precedent, to a case in 1851, when there was before the House of Commons a Bill for im- proving the Court of Chancery,—a Bill which contained a clause empowering the House to require the assistance of the Equity as well as of the Common Law Judges in hearing appeals. Lord Lyndhurst, it seems, took the objection that this clause ought to have originated in the Upper House, and that it was a breach of privilege to interfere with the juris- diction of the Upper House by a provision first introduced in the Lower House. And it is stated that the Govern- ment of that day yielded the point, after the (then) Duke of Richmond had declared that if such a Bill with such a clause were brought up, he would move that it be kicked out of the House, as the Speaker has sometimes been directed to kick money Bills originated in the Upper House out of the House of Commons. The answer is that even if Lord Lans- downe were right in conceding this point in 1851, it is not a precedent for the present case. That Bill dealt with the procedure of the House of Lords in relation to a jurisdiction which it had had by immemorial right qua House of Lords ; but that is not the case in relation to Scotch and Irish Appeal cases, which were transferred to it by statute, and not given to it by virtue of its ancient privileges. It is obvious therefore that if the statutes which conferred on the House of Lords the Scotch and Irish Appellate Jurisdiction originated,—as both of them did,—in the House of Commons, it is also quite competent for a statute which transfers that Appellate jurisdiction to a new Court to originate in the House of Commons. Nothing could be more absurd than to maintain that it was in order for the House of Commons to originate the legislative gift of a judicial function, of which it is not competent for it to originate the legislative ter- mination. Mr. Gladstone, too, quoted cases in which the House. of Commons had actually proposed changes in the number of Bishops having seats in the House of Lords, and in the order oil their precedence,—a question which of all others might be saki to touch the special privileges of the Lords,—and in which no- opposition of any kind was made. Again the House of Com- mons has altered provisions of a like kind sent down from the Upper House, without incurring any resistance. In. the Irish Church Disestablishment Bill, the Commons pro- posed to remove some of the members of the House of Lords ; the Lords negatived these clauses ; but the Commons disagreed with the amendment of the Lords, and then the Lords acquiesced. In point of fact, it has always been main- tained that while each House is strictly master of its own pro- cedure, either House may introduce or alter measures directly affecting the public welfare, in which even the very constitu- tion of the other House is involved. As the Lords altered) freely the provisions of our latest Reform Bill, of course, the Commons are quite at liberty to alter provisions of gene- ral public interest affecting the Appellate Jurisdiction of the Lords. And it is most important for the sake of the public: interest that this right on both sides should be maintained.. The only reason the Commons claim an exclusive right to deal with the details of money bills is that they represent. the interests of the taxpayers, while the Lords do not. On, all other matters it would be in the highest degree absurd that the Lords should not have a full right of proposing amendments in everything that affects both the Commons and the public ; nor are we disposed to think that. even as regards the traditional principle in relation to money Bills, the old rule is now of any great value. It would impose a most mischievous check on practical measures if either House of Legislature had always to be clearing away., petty questions of privilege, before dealing with matters of the broadest public interest.

To our minds, Mr. Gladstone has gone to the very verge of weakness in offering, as he has done, to concede the point for this special occasion, by sending up to the Lords provisions not really transferring the jurisdiction of the Upper House in Scotch and Irish Appeal cases, but only providing for the transfer in case the House of Lords are inclined to make it. There is something in the plea that, as the Lords have voluntarily sacrificed their privilege in the case- of English appeals, and have so shown their real disinterestedness, the Commons ought to treat them with delicacy on a point of form. But though there is something in this plea, there is not much in it. If Lord Cairns's speech is any index to the temper of the majority in the Upper House, that temper is now one of jealous and fretful dislike to the success of the only great measure the Liberal Government seems to have a chance of carry-

ing this session. The privilege ' plea is a mere excuse. If Scotland and Ireland are really divided on the question, let the Lords show it, and reject the amendment- openly on that ground. But to go off in this manner, on a question of privilege which requires quibbling even to make it plausible, is wholly unworthy of the Peers, and ought not to be rewarded by success. The Commons, as Mr. Bouverie declares, are really making a dangerous precedent against themselves, when they deal thus tenderly with Lord Cairns' plea ; and not merely against themselves, but still more against the public interest, with which nothing interferes more seriously than these technical and utterly artificial impediments to the straightforward, practical, and natural mode of procedure. We should prefer rather to lose the Bill, and see what the country will say to the mincing and pretentious etiquettes of the House of Lords.