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 / 
 
 A SPEECH 
 
 DELIVERED BY 
 
 THE EIGHT HON. LOED O'HAGAN; 
 m THE HOUSE OF LORDS'; 
 
 ON THE 
 
 11th of JUNE, 1874. 
 
 LONDON : 
 BUTTERWORTHS, 7, FLEET STREET, 
 
 f Hfa Unblis^jrs ia t^j Qixmx'B most txcdhnt pajjstg. 
 
 1875.
 
 LOKDON : 
 
 wymaif a.nd sons, peik-teb3, gbeat qtteeif 8ieeex, 
 i-iwcoln's ikn fields, W.C.
 
 NOTICE 
 
 Lord Selborne's Speecli on Lord Redesdale's 
 Motion in the House of Lords (June 11, 1874) 
 having been lately circulated, it has been 
 thought desirable to republish the Speech of 
 Lord O'Hagan, on the same occasion.

 
 A SPEECH, 
 
 Sfc. 
 
 D>#<C 
 
 LORD O'HAGAN :— My Lords, no one can fail 
 to see that tlie task undertaken by the noble 
 Lord, whose motion occupies the House, is full of 
 difficulty. He seeks to reverse a recent decision 
 of your Lordships, — which was affirmed by the 
 House of Commons, chiefly because it had been 
 before pronounced by you, — relating to a ques- 
 tion on which you are more likely to be made 
 adverse to him because it touches your own 
 privileges, and is calculated, perhaps, on that 
 account, to induce a judgment too unfavourable 
 to yourselves. 
 
 But, my Lords, the question does not regard 
 you only. The loss or gain is not merely personal 
 to you. You hold a trust for the good of the 
 realm, which has come down to you, as a great 
 inheritance, through many generations of wise 
 and famous men. If you can .no longer fulfil its 
 obligations with advantage to the administration 
 of justice, you ought, at once, to abandon it; but 
 its voluntary abandonment should, at least, be 
 justified by plain and coercive reasons.
 
 4 
 
 I confess, witli my noble and learned friend, 
 the Lord Justice Clerk, that I scarcely expected 
 to see this controversy effectively renewed. But 
 it has had a vigorous revival. Public opinion has 
 largely declared itself, in various districts of the 
 Empire, for the maintenance of your ancient juris- 
 diction. The discussion is raised again, in new 
 circumstances and under new conditions, by a 
 member of your Lordships' House, who pos- 
 sesses the highest personal and hereditary claims 
 to your most respectful consideration; and I 
 have felt bound to give the matter again my 
 best attention, and to reach, upon its merits, the 
 soundest conclusion I can form. 
 
 I have said so much, perhaps unnecessarily, 
 as my noble and learned friend on the Woolsack 
 seemed to think, when I last addressed your 
 Lordships on this topic, that there was something 
 in the nature of a personal estoppel against my 
 argument, because, having been Lord Chancellor 
 of L^eland under the late Government, I had 
 given, as he said, the weight of my authority 
 to the opposite view. 
 
 My Lords, I may be allowed to submit, that 
 neither my noble and learned friend, the Lord 
 Justice Clerk, nor I, nor the great professions in 
 Scotland and Ireland, whose opinions, in this 
 matter, we approve, should be precluded from 
 expressing those opinions by anything which has 
 occurred. The Bill of 1873 touched England
 
 only, and Ireland and Scotland were not active in 
 opposing its progress. For myself, I was judici- 
 ally engaged elsewliere, during the brief discussions 
 it encountered ; and I took no part in tliem. I 
 did not vote for it : I was not present at the pass- 
 ing of it ; and, if I had been, my adverse inter- 
 ference would have been an intrusion, if it had not 
 been, under the circumstances, an impossibility. 
 
 I pray your Lordships, also, to observe that the 
 Bill now before the House is not the Bill of 1873. 
 They are entirely different, — as has been shown by 
 my noble and learned friend (Lord Penzance) who 
 seconded the motion, — in a point which vitally 
 affects the argument on the issue before the 
 House; and you are free to reconsider your former 
 decision, and modify or reverse it, without any 
 impeachment of inconsistency. The Bill of 1873 
 gave one appeal ; the Bill of 1874, I think most 
 properly, has given two. And the accumulation of 
 business, which might have overwhelmed a single 
 Appellate Court and made the disposal of it by 
 this House impossible, will be so reduced, by the 
 winnowing process of the intermediate tribunal, 
 as to do away with any such impossibility. 
 
 And now, Ireland and Scotland urge their com- 
 mon claim, not to have a Court of Ultimate Appeal 
 distinct from that of England, but to induce 
 England to retain her own time-honoured juris- 
 diction, which they both prefer to any new inven- 
 tion. The Bill is changed, I think essentially, as
 
 6 
 
 to the double appeal ; and on a measure so altered, 
 — on a case urged by those whom, for the first 
 time, it aims to affect, and who, assuredly, 
 have a legitimate right to be heard against it, — 
 on a motion made by an English Peer, and sus- 
 tained, as I am told, by a mass of judicial and 
 professional sentiment in England, — I feel not 
 only at liberty, but bound, with a free and open 
 mind, to form and to express my honest judgment. 
 
 My Lords, the jurisdiction which the noble 
 Lord asks you to preserve is as old as the Con- 
 stitution, and has ever been held an essential part 
 of it. It has been maintained for many ages, 
 through all the changes of governments and all the 
 revolutions of opinion ; and, so far as we have any 
 trustworthy evidence, it is at this moment as 
 respected and as popular, as at any period since 
 it grew into being with the very foundations of 
 the Common Law. 
 
 The description of its characteristics by Lord 
 Coke is as true now as it was three centuries 
 ago. He says : — '' Si antiquitatem spectes, est 
 vetustissima ; si dignitatem, est honoratissima ; 
 si jurisdictionem, est capacissima." And if 
 this be so, may we not fairly ask what is 
 the justification for its overthrow ? By what 
 authority has it been denounced ? On what in- 
 quiry has it been found unworthy of existence ? 
 What trial has been made to correct its errors 
 and supply its shortcomings, before its condemna-
 
 tion to extinction ? The burden of proof is surely 
 on those who assail an institution so venerable in 
 its antiquity and so great in its traditions ; and 
 that proof should be strong and clear, to overbear 
 the presumption in its favour which those things 
 create. But I venture to say that no change so 
 momentous was ever proposed on lighter grounds 
 or accomphshed with less deliberation. 
 
 Various inquiries have been instituted by your 
 Lordships as to your Appellate Jurisdiction, and 
 not one of them has issued in a recommendation 
 to aboHsh it. They all contemplated its reform, 
 and not its destruction ; which, for England, was 
 achieved, after very slight debate, in a single 
 effort, by the Act of 1873. There were such in- 
 quiries in 1813 and 1823, on which I need not 
 now bestow attention. But the inquiry of 1856, 
 before a Select Committee of this House,— con- 
 ducted as it was by Peers of the highest ability 
 and distinction, beyond all others qualified to 
 pronounce on such a question, and aided by the 
 testimony of men of remarkable professional ex- 
 perience and attainments,— may surely claim the 
 greatest consideration. A Committee composed 
 of such persons as Lord Lyndhurst, Lord St. 
 Leonards, Lord Brougham, Lord Cranworth, 
 Lord Campbell, Lord Aberdeen, Lord Lans- 
 downe. Lord Ellenborough, and Lord Elgin, has 
 rarely been matched in either House of Par- 
 liament. The witnesses were of the highest and
 
 8 
 
 most instructed class, such as Lord Westbury, 
 and my friend, Sir Joseph Napier, afterwards 
 Lord Chancellor of Ireland ; and that Committee 
 unanimously expressed their entire concurrence 
 with the general opinion of those witnesses, as to 
 the expediency of retaining the Appellate Juris- 
 diction of this House. 
 
 It is impossible to imagine a pronouncement of 
 greater conclusiveness. Statesmen and judges, 
 amongst the greatest and the wisest whom England 
 has produced, united in declaring that there was 
 no need of the change which has been wrought. 
 And you are merely asked to affirm their judgment 
 — which no subsequent circumstances have affect- 
 ed, which no subsequent decision has overruled, 
 which, if it was correct in 1856, is equally correct 
 in 1874. The Judicature Commissioners had not 
 the question of your Lordships' jurisdiction re- 
 ferred to them ; and the Committee of this House, 
 in 1872, on which I had the honour to serve, did 
 not advise extinction of the tribunal, but that it 
 should be supplemented and strengthened by 
 extraneous aid. This was the last inquiry on the 
 subject, and this the last authoritative counsel 
 given to your Lordships before you were asked 
 to vote for the change of 1873. So that, if I am 
 not mistaken, the judgment of 1856 remains 
 undisturbed ; and there is nothing to bring it 
 into question. 
 
 And is it too much to ask that that solemn
 
 judgment should not liglitly be set at nought? 
 Why should it be ? Opinion sometimes unduly 
 compels change. It is sometimes too strong for 
 argument, — too masterful for rational resistance. 
 It has its gusts of passion, which obHterate old 
 landmarks, sweep down cherished institutions, 
 and compel reluctant observance of its imperious 
 mandates. But, in this case, opinion and author- 
 ity go together. 
 
 There has been much criticism of the House 
 of Lords as an Appellate Court. Its actual defi- 
 ciencies have been frequently exposed, and there 
 have been very many and very useful suggestions 
 for its reformation. But I am not aware that 
 England has uttered any outcry against its con- 
 tinuance. I have heard of no popular or pro- 
 fessional demand that it should be done away. 
 My noble and learned friend on the Woolsack 
 has read the resolutions of 1873 as indicating 
 the opinion of Ireland ; but I must remind him 
 that, in 1874, the Irish Bar have unanimously 
 and repeatedly declared their preference for this 
 House as the Final Court of Appeal, and that 
 the representatives of the Irish soHcitors have 
 petitioned your Lordships, affirming, for them- 
 selves, that preference. They all recognize the 
 necessity of having the same final Court for the 
 three kingdoms ; but they all desire that it may 
 be what it is, and nothing else. In 1873, they 
 did not meddle with the provisions of a measure
 
 10 
 
 not immediately affecting them. In 1874, their 
 declarations are strong and unequivocal. 
 
 Scotland is of the same opinion. The Judges 
 are unanimous : the writers to the signet are 
 unanimous ; and, though there appear to be dif- 
 ferences elsewhere, my noble and learned friend 
 behind me has demonstrated that the feeling of 
 Scotland is effectively with this motion. 
 
 Is, then, the pronounced judgment of two king- 
 doms to go for nothing ? Ought it to receive 
 no respect and command no attention ? My noble 
 and learned friend has said that the opinion of 
 the professions is not the opinion of the people, 
 and that this can only be known through their 
 legitimate representatives. But, on a question of 
 this description, who are to determine ? By whose 
 judgment should the general sentiment be guided ? 
 Surely, the men who alone have opportunity of 
 observing, and have at once a duty and an in- 
 terest to observe, the conduct of a tribunal, are 
 the true exponents of opinion about it. The 
 masses know nothing, and can know nothing, 
 save through their report ; and when they com- 
 bine for praise or blame on such a subject, the 
 multitude must follow them. If the working of 
 any judicial institution has their approval, must it 
 not be held of the highest value ? The mode of 
 the administration of the law is often as important 
 as the law itself, and when those who administer 
 it command the confidence of the advocate and
 
 11 
 
 the suitor, the tribunals they control are beyond 
 impeachment. 
 
 As to the matter before us, the instructed opinion 
 of Ireland and Scotland — and of England also, as 
 I am assured, to a very large extent — whilst it 
 desires reform, protests against destruction ; and 
 if the abolition of the judicial functions of this 
 House be permanently accomplished, it will occur, 
 not in response to any public complaint, or in 
 obedience to any public condemnation, or in 
 satisfaction of any public desire, but against the. 
 remonstrance and in spite of the opposition of 
 the classes in, at least, two of the three kingdoms, 
 who are most qualified to speak, and best entitled 
 to be heard, on a proposal vitally affecting their 
 profession, their country and themselves. 
 
 Well, then, my Lords, if the retention of your 
 jurisdiction be approved by the highest authorities 
 in the Law and in the State ; if there be no ad- 
 verse finding by Committee or Commission ; if 
 public opinion be in its favour — why should you 
 cast away a privilege which you hold, not so much 
 for your own honour, as for the benefit of the 
 nations which beg you to retain it ? What assur- 
 ance have you that the thing to be substituted will 
 be better than the thing to be destroyed ? How 
 has it been demonstrated that you cannot com- 
 bine continuous judicial action, ripe intellect, deep 
 learning and wide experience, with the prestige 
 and the dignity incommunicably attached to a
 
 12 
 
 tribunal, so venerable in age and so imposing in 
 authority ? AVliat are the conclusive reasons 
 which should compel you to abandon your position 
 in the judicial system of the Empire ? Why 
 should you precipitate an organic change, which 
 will shatter one of the stoutest buttresses of your 
 constitutional power ? 
 
 Consider for a moment the objections which 
 have been raised against the existing arrange- 
 ments ; and whether, if they be tenable, they be, 
 also, irremovable ? Those objections, as stated 
 by the Committee of 1856, and since repeatedly 
 urged in discussion, represent that the attendance 
 of the Law Lords is uncertain and fluctuating, the 
 adequate number difficult of maintenance, and the 
 period of the sittings limited by the duration of 
 Parliament. 
 
 Beyond doubt, the interest of the suitor is 
 primarily to be regarded ; and it is the first duty 
 of Parliament to obtain for him the best available 
 tribunal. To this object should be subordinated 
 all considerations of political convenience and 
 class privilege; and if these things cannot be 
 made plainly to concur with the effective adminis- 
 tration of justice, they must be entirely disre- 
 garded. 
 
 But the objections seem to me removable, and 
 by the simplest means. The attendance of the 
 Law Lords is, to some extent, occasional and 
 uncertain, although I believe it was never less so
 
 13 
 
 than it lias been for a long time past. But the 
 Committee of 1856, and the Committee of 1872, 
 suggested a simple remedy, which should, at least, 
 have been tried before the evil was pronounced 
 incurable. The Committee of 1856 proposed the 
 appointment of Deputy Speakers of the House, 
 who might be judicial persons of the highest 
 class; and who would always, with the Lord 
 Chancellor, constitute a permanent Court, sitting 
 along with the ordinary Law Lords. The Com- 
 mittee of 1872 gave somewhat similar advice 
 as to the association of salaried Judges with 
 the legal members of the House; and either 
 of these suggestions, if successfully carried out, 
 would have met the main difficulty, not existing, 
 but possible to arise, in the actual state of things. 
 Then, as to the cessation of sittings prematurely, 
 the Committee of 1856 recommended that the 
 House should be authorized by statute to have its 
 Judicial Committees continued in Vacation, and 
 for this recommendation they had the authority 
 of Lord Hale in his book on the Appellate Juris- 
 diction. No one can doubt the power of Par- 
 liament to adopt such a course, and, by it, that 
 difficulty might have been removed. 
 
 But further, we have been told— and this is the 
 most common and popular argument against your 
 Lordships* jurisdiction— that it is a " sham " and 
 an unreality, because the Appellate Tribunal is 
 composed only of legal Peers, and not of the
 
 14 
 
 majority of your Lordsliips. Precisely the same 
 objection would have applied at any period of 
 your long history. Your predecessors always 
 acted according to the judgment of those who 
 were learned in the law. Lord Hale's treatise 
 demonstrates this, in many conclusive passages. 
 He says : — " The Judges have been always con- 
 sulted withal, and their opinions held so sacred, 
 that the Lords have ever conformed their judg- 
 ments thereunto, unless in cases where all the 
 Judges were parties to the former judgment, as 
 in the case of ship money." And, again, of the 
 Judges, he says : — *' Their opinions have always 
 been the rules whereby the Lords do, and should, 
 proceed in matters of law, especially between 
 party and party." And he seems to show the 
 way out of the present difficulty by ancient prece- 
 dent, when he speaks of the writs, — " By which 
 a certain select number of the Lords with the 
 Judges were commissioned by the King to ex- 
 amine, hear, and determine errors in judgments 
 and decisions." The rules of action indicated in 
 these passages have ever governed the judicial 
 conduct of this House, and it seems to me a 
 mistake to suppose, as was suggested by my 
 noble and learned friend (Lord Hatherley), that 
 the O'Connell case established any new practice, 
 or involved any novel abandonment of jurisdiction. 
 The Appellate Tribunal is as substantial a reality 
 at this moment as it has been at any time since
 
 15 
 
 it came into existence, and tlie suggestions to 
 whicli I have referred, and which have been 
 repeatedly made without effect, would, if adopted, 
 in my judgment, give it vigour, constancy, and 
 permanence, while preserving the peculiar attri- 
 butes which have so largely won for it the 
 attachment and trust of the community. 
 
 The objections we have heard, though for- 
 midable in seeming, are not fatal in fact. They 
 mav be encountered whilst we stand within the 
 historical lines of the Constitution, adapting 
 ancient principles to modern needs ; and they do 
 not warrant the ruin of an institution which, by 
 their removal, we shall be enabled to reform. If 
 it be possible at once to save and to amend, are 
 we not bound to do so ? 
 
 Can any one doubt the value of uniting the 
 legislative and the judicial functions of your 
 Lordships' House ? Does not their exercise work 
 a reciprocity of advantage which should not be 
 wantonly relinquished ? May not your legislation 
 derive clearness and precision from the trained 
 action of legal minds ; and will not those minds 
 be enlarged and enlightened, for the purpose of 
 decision, by contact with the work of statesman- 
 ship, and familiarity with the great social and 
 political questions which occupy the intelligence 
 of the world ? And why should the final judg- 
 ment in the Court of last resort be deprived, if it 
 be not clearly necessary, of the impressiveness
 
 16 
 
 and the respect with which it has been clothed, 
 from connection with the exalted position and the 
 proud memories of this great Assembly ? 
 
 My Lords, you may not be convinced by the 
 arguments which I and those who think with me 
 deem it our duty to submit to you. You may 
 answer — " Jacta aleaest;^^ and your decision may 
 be irreversible. If it be so, I shall strive to hope 
 the best ; but I shall lament that decision, alike 
 in the interest of justice and of legislation.