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their lordships, would appeal to the other House and to public opinion, which was never permanently unjust to public men.
Lord Westbury said it seemed by the speech they had just heard as if the weakness of the Lord Chancellor's case were to be covered by unjustifiable abuse of the Lord Chief Justice. Warmly defending the course taken by the latter, who had been for many years a personal friend and supporter of Mr. Gladstone, he asked the Duke of Argyll whether, upon any subject, he had ever known such unanimity of condemnation. He should regard this as decree coming up from the Lord Chancellor, upon which it was his duty to sit on appeal, and in which it would be his duty to reverse the Lord Chancellor's judgment. It was an error in judgment, and nothing more; and he admitted that the Government had not been influenced by any unworthy motives. Twitting the Lord Chancellor, as Lord Salisbury had done, upon the silence he had hitherto preserved during the debate, he declared that, if this were a matter of private property the act might be impeached as a fraudulent exercise of a power, and the Lord Chancellor, if it came before him, would be compelled to set it aside as a fraudulent abuse of the power. Humorously describing the joint action of the Prime Minister and the Lord Chancellor, he said that the appointment of Sir R. Collier, if before a Court of Equity, must be revoked. If, unhappily, it should be irrevocable, their lordships must do what they could to prevent any gross abuses in future of powers given for one purpose and employed for another. After pleasantly criticizing the letter of Mr. Justice Willes as illustrating the two kinds of justice dealt out by the Courts of Law and Equity, he protested against the Head of the Law being driven to justify his conduct by the parsimony of the Chancellor of the Exchequer. Time was when the Lord Chancellor of England would have told the Prime Minister and the Cabinet what was necessary for the due administration of the law.
Lord Romilly, on the other hand, declared that the appointment had been perfectly right and proper. The object of the Act was that fit persons should be appointed to the Judicial Committee, and if the Government had taken any other course they would have sacrificed the real meaning of the Act to a mere technicality. He hoped their lordships would not pass a vote which would lead to disastrous consequences.
The Lord Chancellor wished that he had been asked his reasons simpliciter, and that a vote of censure had not been founded upon this appointment before any explanation had been sought in that House. Lord Stanhope might, on moving for papers, have given notice of his intention to ask a question, and he might have shaped his motion according as the explanation had been satisfactory or otherwise. Sir A. Cockburn's letter to himself was in his opinion not one to be answered. A controversy between them would have been in the highest degree unseemly, and the Lord Chief Justice was not the censor of the Prime Minister and the Lord Chancellor.
Since Lord Ellenborough's time it had been held that the Lord Chief Justice had better not interfere with politics. Yet these party motions and attacks were all founded upon his letter. The spirit of the Act was to provide a Court for the speedy hearing of Indian and Colonial appeals which had run into arrear. That Court had sat, and the number of Indian appeals disposed of had been exactly doubled. All admitted that Sir R. Collier was admirably fitted to be appointed a member of the Judicial Committee. Entering minutely into the reasons for the Act, and the changes made in it in the other House, he described the applications made to the existing Judges of the Superior Courts to accept seats in the new tribunal. Two refused, owing to the absence of a provision for their clerks, and others appeared to be averse from acceptance. The Premier then expressed a doubt whether it was desirable to go on hawking about these appointments, and Sir R. Collier, hearing of the difficulty, offered to accept it. Thus he consented to take the leavings of the other Judges, and yet this was called a job. Never was there a grosser misapprehension than to call this a colourable qualification, and four out of seven of the Equity Judges agreed with the Government. In conclusion, he said that although he should regret their lordships' vote of censure, yet, regarding this as a party manæuvre, he should hold his ground until the House of Commons passed a similar motion.
Lord Cairns admitted that, since the tragical news from the East and the dark cloud which had appeared on the Western horizon, the proportions of the present question had greatly dwarfed in his estimation. Contending that the spirit and essence of the Act had been clearly and palpably violated, he said it was a novel doctrine that the judgment of Parliament was not to be passed until the Lord Chancellor had given his explanation. If he had been so desirous to explain, he might have done so on the motion for papers. No new fact had been stated to-night that had not been publicly known before, and the fitness of Sir R. Collier was not in question. After replying to some of the arguments used by previous speakers, he referred to the history of the Act, and said he agreed in the only proposition laid down in Mr. Justice Willes' letter, that the appointment was legal. All the Equity Judges and all the Bar would agree with that. If it had not been legal Sir R. Collier could not have taken his seat, and the present vote of censure would have been unnecessary. The marrow of this question was whether Sir R. Collier was chosen by the Prime Minister as a member of the Judicial Committee because he was a Judge, or whether he was made a Judge because he had already been chosen a member of the Judicial Committee. The date of his appointment as a Puisne Judge was November 7, while on November 3 Sir R. Collier was sworn in a member of the Privy Council at Balmoral. Since Puisne Judges were “invented” not one had ever been made a Privy Councillor before he took his seat on the Bench. He inferred, therefore, that Sir R. Collier was made a Privy Councillor, not with
a view to the Judgeship, but to the Judicial Committee, and that when the Prime Minister made his choice he selected one who was not one of the Judges of the land when his mental choice was made. The essence of the Act was, therefore, practically violated. He honoured Lord Chief Justice Cockburn for the courage he had displayed, and vigorously protested against the doctrines heard from the Ministerial Benches in defence of this appointment.
Lord Granville said that he never remembered so much intellectual ability shown in a matter which lay so much within a nutshell. Declaring that the speech of the Lord Chancellor must have carried conviction into the mind of every unprejudiced person, he remarked that it was now admitted by Lord Cairns and others that the appointment of Sir R. Collier was legal and valid. Lord Salisbury had expressed his unwillingness to turn out the Government when the horses were extricating the vehicle from a bog, but it was not the best way of helping the drivers to pelt them with mud from the banks. It was anything but a Conservative policy that noble lords opposite should be constantly trying to damage the Government by votes of censure. They would only blunt the instrument in their hands by its too frequent use, without producing any practical result. He should regret if the vote of censure were carried, not only for the sake of their lordships, but because of its evil example in the future administration of justice.
Lord Longford supported the motion.
Their lordships divided, when Lord Stanhope's vote of censure was negatived by 89 Not-Contents against 87 Contents.
In the House of Commons the Government was significantly acquitted of any serious offence by a majority of twenty-seven, which was said exactly to correspond with the number of official votes.
Mr. Cross moved the vote of censure on the appointment, declaring that it was a violation of the intention of the statute and of evil example in the administration of judicial patronage. At the outset he stated that he did not intend to question Sir Robert Collier's fitness except for this particular promotion, nor the actual legality of the appointment.
He maintained that, whereas everybody believed the Act to provide a safeguard for the qualifications and judicial experience of the persons promoted, without which Parliament would not have passed the Act, the Government had broken faith with Parliament by doing away with that safeguard. Tracing the history of the Judicial Committee from its first foundation, and through the various changes in its constitution, and dwelling specially on the Bill of 1870, he maintained that Parliament had always pronounced against elevating practising barristers to the Judicial Committee. The intention of the Act of last year was not to change the qualification of the persons selected, but simply to provide salaries which would induce certain members of the Committee to attend more regularly. As was shown by the language, which he quoted, of Sir Robert Collier and other members of the Government, the Government meant that the persons selected should have the special qualifications mentioned in the statute. Moreover, from their acts under the statute, which he referred to, he contended that the Government knew they were wrong in appointing Sir R. Collier, and that he himself knew it was wrong, the only point on which he found fault with Sir. R. Collier being that he had offered himself to the Lord Chancellor. Canvassing next the terms in which Sir Roundell Palmer had moved an amendment, he challenged Sir Roundell Palmer, or any one else, to ask Parliament to approve the appointment, and wound up by comparing the transaction to the Royal Warrant of last year, the Ewelme Rectory affair, and other acts of arbitrary power.
Mr. Goldney seconded the motion, characterizing the appointment as a revival of the dispensing power, and contending that the Government was bound to regard the qualifications prescribed by the Act or else to ask Parliament to repeal them.
Sir Roundell Palmer moved, as an amendment, that the House sees no just cause for censure in the appointment. Replying, first, to the criticisms on the language of his amendment, Sir Roundell said he should consider it a just cause of censure if the Government had violated the Act in its substance or in its letter, if they had broken faith with Parliament, if they had exercised legal powers for a wrong purpose, or if they had appointed an incompetent person.
But he denied that they had committed any one of these offences, and, though there might have been indiscretion and a wrong view of the statute, there was no cause for Parliamentary censure. Sir Roundell admitted that judicial qualification had always been associated in his mind with these appointments, and that at first he had doubted whether the Government would find the appointment consistent with the statute. But when it came to a matter of Parliamentary censure, the test must be not any man's private idea of the meaning of the statute, but the statute itself. Then, discussing the statute, Sir Roundell denied that judicial experience was embodied in it as a qualification for these appointments; it was judicial status alone which was required. Moreover, judicial experience never had been required as a qualification for the Appellate Court. Under the old system, the Vice-Chancellors became members of the Judicial Committee when they were raised to the Bench. Lord Cairns, Sir J. Rolt, Sir J. Selwyn, and Lord Justice Mellish had been sent to the Court of Appeal straight from the Bar, and Lord Kingsdown never had any judicial experience at all. Proceeding next to deal with the assertion of the Resolution, that the appointment was a violation of the spirit and intention of the statute, Sir Roundell expounded at length, with many quotations from Story, Lord Brougham, and Lord Cranworth, and others, the rules for construing statutes, and maintained that Parliament would not be justified in going outside of the statute for the purpose of passing a censure. As to the simultaneous appointment to the Common Pleas and the Privy Council, he admitted that if it were done wantonly and capriciously, and over and over again, he would not defend it. But this objection of cumulation could only apply if the man appointed were unfit for the first place to which he was appointed, or if, according to the true intention of the Act, judicial experience was necessary. The Government, he asserted, might legally appoint a man to a post if he were fit before he had the qualification, provided they intended and were able to give him the qualification. Sir Robert Collier was fit to be made a Judge of the Common Pleas, and the Queen made him; he then was qualified for the Judicial Committee, and the Queen promoted him. The process was right because the end was right, and the means legal. With regard to the Indian qualification, however, Sir Roundell admitted that to have made a man an Indian Chief Justice not to go to India, but merely to qualify him, would have been objectionable. Finally, he vindicated the motives of the Government, which, whether they had made a mistake or not, did not deserve Parliamentary censure; and touching on the results which must follow the adoption of the motion, he pointed to the consequences to Sir R. Collier, and the danger of lowering the dignity and usefulness of the office.
Mr. Goldsmid seconded the amendment, and Mr. Ş. Hill spoke in favour of the motion.
Mr. Watkin Williams, speaking from the Liberal benches, regretted that the Ministerial explanation had confirmed his first impression—that the Government had deliberately violated and strained the declared intention of the Legislature in order to extricate themselves from a fancied practical difficulty. According to all the rules governing the interpretation of statutes—for which he quoted Puffendorf and Grotius-judicial experience was required.
Mr. Serjeant Simon, on the contrary, maintained that the spirit of the Act included no reference to judicial experience; while Mr. Charley supported the motion.
The Lord Advocate asked whether the complaint and the occasion were worthy of the attention of Parliament. No imputation of jobbery and corruption had ever been advanced, the legality of the transaction was admitted, and Sir R. Collier's fitness was not denied. At some length, and amid many signs of impatience, the Lord Advocate went on to argue that Sir R. Collier's qualification was not merely colourable, but was consonant with the intention of the Act in the broadest sense.
Mr. Denman, who supported the vote of censure from the Liberal benches, prefaced his reasons by some references to his personal position. He had been pressed by his friends not to speak or vote lest it should be ascribed to disappointment, but he held it to be the basest cowardice to prefer interest to duty, and to refrain from doing right from fear of wrong motives being attributed. For many Sessions he had been Mr. Gladstone's zealous supporter, and for this he appealed to the former experience of the Speaker.