THE LORD CHANCELLORMy Lords, in rising to move the Resolution which I have put on the Notice Paper for the consideration of your Lordships' House, I wish in the first instance, to repeat what on two recent occasions of your Lordships meeting I mentioned—namely, that my reason for proceeding by this method rather than by introducing at once my Bill for the constitution of the Court which I would wish to establish, if your Lordships agree to transmit to another tribunal the appellate jurisdiction of this House, was that I thought it more respectful to your Lordships that a jurisdiction which had long been exercised by this House—though in many instances not without considerable contest, and though it was not introduced originally without considerable contest—should not be abolished by means of a Bill before the whole subject had been submitted for your Lordships' careful consideration. I am aware that in proposing to effect a great change of this kind in a long-established institution, and more especially in the case of an institution connected with the administration of justice, the burden is imposed on me of showing that the institution itself requires a total change, in consequence of defects which have been found to exist in carrying its functions into operation, and also of showing that the change proposed to be made will remedy those defects. Indeed, that is a burden which I apprehend is imposed on everyone who proposes a change in what has been long established. Now, my Lords, as regards the particular change—if I were about to propose that your Lordships should surrender anything which contributed to the useful portion of your Lordships' functions in respect of the administration of justice in this kingdom, or, if I supposed that the result of the transfer of your jurisdiction in respect of appeals would be to weaken the authority of your Lordships' House, I 1229 should hesitate for a long time indeed before I recommended any such proposal to the notice of your Lordships. But, my Lords, I shall be prepared to show—I trust with as much brevity as possible, though the subject is a large one—that, in reality, your Lordships never exercised as a body an appellate jurisdiction without such an amount of contest as has on each successive occasion tended to weaken the authority of this House as a Court of Judicature, and that it is a quarter of a century since, in the case of Mr. O'Connell, your Lordships absolutely declined to exercise such jurisdiction. I shall show also that to many persons of great eminence in the law, the anomalies of the appellate jurisdiction of this House have appeared to be so considerable that they have been induced to declare it to be extremely unsatisfactory. I think it will be found that even in the House itself, at a time when opinion was not yet ripe for any measures of very extensive reform, there was a misgiving on the part of men of great influence with your Lordships, arising from a conviction that the system did not act in such a manner as to give satisfaction and inspire confidence. I may call your Lordships' attention to the fact, that within the last 60 years no fewer than three Committees have been appointed by this House to investigate the subject of its appellate jurisdiction, with the view of seeing what could be done for its reform and improvement. The first of those Committees was appointed in 1811, the next in 1823—both in the time when Lord Eldon occupied the Woolsack—and the third in 1856. In respect of the Members who composed it, the last was a very powerful Committee. But before I refer to any of the recommendations, it may be as well that I should briefly state in what way the appellate jurisdiction of this House attained to full and complete existence. Your Lordships have now—and you have had from a very early period—full jurisdiction in writs of error coming from the Common Law Courts, in respect of conclusions and decisions of these Courts. You have also and have had, but from a very much later period, jurisdiction in cases brought by way of appeal from decisions of the Courts of Equity. Since the Union with Scotland, in which country there is not that division of Law and Equity which exists in England, you have had jurisdiction in respect of both branches; and 1230 since the Union with Ireland you have had jurisdiction in appeals from the Irish Court of Chancery. This jurisdiction in Equity you have possessed for about 200 years;—but not without contests. I do not, however, allude to those contests having existed with the view of throwing the least doubt on your jurisdiction, because the very fact of those contests having existed is strongly confirmatory of the fact that since the period to which I have referred it has been continually exercised. But there are other matters in which your Lordships never have exercised jurisdiction—namely, in appeals from the Colonies, in appeals from the Admiralty, and in appeals from the Ecclesiastical Courts. Besides the appellate jurisdiction, your Lordships' House, as a Court, has wide jurisdiction which is not appellate, and with which neither my Resolution nor my Bill proposes to deal. Your Lordships have, of course, jurisdiction respecting your own privileges and all that concerns them. You have a jurisdiction in respect of claims to Peerages, and to successions to Peerages; and you have a criminal jurisdiction if, unfortunately, a criminal charge should be made against any Peer. Your Lordships have full jurisdiction, also, in cases of Impeachment brought by Order of the other House. In such cases this House is a Court in which high crimes and misdemeanours may be tried. To none of these do I intend my Resolution to apply. The Bill which I shall hereafter introduce is confined entirely to the appellate jurisdiction which this House exorcises in respect of Common Law and Equity in England, and of Civil Proceedings in Scotland, and also to the appellate jurisdiction exercised by it in respect of cases arising in Ireland. I have not, however, confined my investigations to those particular objects. There are facts of so much interest in connection with the proceedings of this House in respect of its appellate jurisdiction that I think I ought not to omit to go back a little and mention some of them to your Lordships. In the reign of Charles II. there were violent disputes between the two Houses about the right of Parliamentary judicature, of which an account is given in some detail by Sir Matthew Hale, whose account of it, with Hargrave's Notes, will be found in the Library. The matter has been entered into more fully and more clearly by Lord St. Leonards. Your Lordships' 1231 jurisdiction in writs of error from the Courts of Common Law dates, as I have already mentioned, from a very remote period—anterior to the Great Charter. It dates, indeed, from the beginning of the Norman rule in this country, when the Sovereign was regarded as the fountain and administrator of justice. Petitions from those who sought justice were addressed to the King, who being surrounded by his Council and his great Officers of State, had the power of referring to those around him learned in the law, and disposing of the causes brought before him in accordance with previous decisions and the known laws of the land. When his Parliament was convened, he had the advice and assistance of his Peers; at other times he had around him the great Officers of his Court. These afterwards became Courts of Justice, called sometimes the Aula Regis, at others the Consilium Regis, with officers who corresponded to the Lord Chancellor and the Lord Chief Justice, the latter being called the Chief Justiciary. This system of moving tribunals was continued up to the time of the Great Charter; but as the inconvenience of this system had been experienced, the Great Charter provided that there should always be one stationary Court. This was the origin of our existing Court of Common Pleas. In like manner the other Courts branched off into independent Courts. From these Courts the reference was to the House of Peers; and, no doubt, it was in this way that writs of error found their way to your Lordships' House from the Courts of Common Law. It will be found that, from the beginning of the reign of Edward I. down to the reign of Henry IV., the appellate jurisdiction was continuously exercised in the case of writs of error coming from the Courts of Common Law; but after that time there appeared to be a lull, caused by the Wars of the Poses, or for some other reason. The records of the times do not show that any controversy arose as to what was and what was not within the jurisdiction of the Lords; but during the reign of Henry IV. this House repeatedly asserted its sole right to hear and decide on appeals, and it protested against the supposition that any right in respect of appeals was vested in the other House of Parliament. Neither was there any question of the jurisdiction of your Lordships' House sitting as 1232 a Court of Parliament until the reign of James I. In the reign of that Sovereign the Commons began to assert their privileges in a more active manner than they bad done in previous reigns. The way in which they did so was not very satisfactory, nor do I think the action of the Lords was very much more so. A Roman Catholic gentleman, Mr. Edward Floyd, was accused of having used expressions disparaging the Electress Palatine, daughter of the King, and the Commons took upon themselves to try him, and sentenced him to an infamous punishment and to a fine of £1,000. The House of Lords took offence at these proceedings of the Commons, and declared that the proceedings rested with them; they declared all the proceedings of the Commons invalid and inoperative, took proceedings against Mr. Floyd themselves, and inflicted punishments still more disgraceful, and a fine of £5,000. That was the first instance of an attempt on the part of your Lordships to exercise an original jurisdiction in criminal cases. Lord St. Leonards, in his book on this subject, calls attention to a case which shows the difficulty the Lords experienced when endeavouring to assert an original jurisdiction, and also an appellate jurisdiction, respecting cases arising in the Court of Chancery. In the case of two gentlemen named Mathews, there was an application to this House to exercise this double jurisdiction in respect of a claim to land. The Lords came to a singular resolution, directing the Lord Keeper Williams to apply to the King for the appointment of Commissioners to try the case; which resolution showed the doubts entertained by their Lordships in respect of their original jurisdiction and of appelate jurisdiction not arising on writ of error. Bourchier's case, which arose on direct appeal from the same Lord Keeper, is interesting on some what similar grounds. In the time of the Long Parliament matters respecting the jurisdiction of your Lordships went on in a very irregular way. Ultimately, there arose the great case referred to by Hale. One Mr. Skinner complained of the East India Company in regard to an estate which he possessed in one of the East India Islands. He made a singular claim to this House for relief which, if it had been acceded to, would have established your Lordships' authority over every case arising beyond the seas. 1233 These claims on the part of your Lordships' House were not persisted in, and things settled down to this—that your Lordships heard complaints when called upon to do so by writs of error or on appeal from Chancery. Lord St. Leonards cites, without disapprobation, language of Sir Matthew Hale, which is very strong as bearing upon the exercise of judicial functions by Peers who are not lawyers. Hale asks whether it could be supposed that any one came into the world embued with the knowledge of the laws of this kingdom, or could be supposed to be inspired with the knowledge of the law by the acquest or descent of a title of honour. Thus a case was decided in your Lordships' House in opposition to the opinions of all the Judges of the time: it has been said that it was well decided, and perhaps it may have been; but certainly it was not decided in accordance with the law as it existed when the decision was given. It is impossible that the appellate jurisdiction of your Lordships' House could have continued to be exercised for so long a period by the House as a body were it not that the opinions delivered were in reality those of very great lawyers—those opinions were accepted because of the authority of the men from whom they proceeded. Certainly, they did not derive additional weight from being the decisions of your Lordships' House. In the reign of Queen Anne there arose a case which fairly tested the question of the jurisdiction of your Lordships' House. It was a remarkable case, calculated to excite the attention of the other House of Parliament. Proceedings were taken against a sheriff for refusing to record a vote at an election of a Member of Parliament. The case came before this House; but the House of Commons protested against the Lords pronouncing a decision as to who ought and who ought not to vote for a Member of Parliament. There was a difference of opinion among the Judges, one of whom was Chief Justice Holt. The matter was discussed with some warmth in both Houses of Parliament. The question was finally decided by a division of 50 Peers against 16; and 13 Peers of the minority entered a Protest on the Journals of the House against the decision arrived at. All those cases are collected in a Note on Mr. O'Connell's Case in the second volume of the House of Lords' Reports. Before the case of 1234 O'Connell there was one which excited a good deal of interest among the occupants of the Episcopal Bench—the case of the Bishop of London against Fytch. The question was as to whether a general bond of resignation—one which did not specify the particular person in whose favour it was made—was a valid one. The Judges were practically unanimous that the bond was valid. The Bishops took a prominent part in the discussion of that case, and addressed to the House arguments which will be found in Lord St. Leonards' book, and in which they stated that though certain propositions might be good law, they were not founded on philosophy or on divinity. By a majority of 19 to 18 the House decided against the legality of the bond. The last time at which an attempt was made to exercise the appellate jurisdiction of your Lordships by the House as a body was on the occasion of the appeal in O'Connell's case. It would have been very dangerous to the reputation and privileges of your Lordships' House as a judicial body if that course had been pursued; for many noble Lords who shewed great eagerness to vote had shewn no readiness to listen to the arguments and were not learned in the law, while others who had listened to the argument had no judicial experience. A remonstrance was addressed to your Lordships against the proposed course, and in the end your Lordships very wisely withdrew from taking part in hearing the appeal, and left the decision entirely to the wisdom and learning of the Law Lords. It is, therefore, idle to talk of the decisions of the House of Lords as the decisions of your Lordships as a body. The decisions have been in reality those of a small Committee of Law Lords. Nevertheless they are called the decisions of the House of Lords; and I will now show the great inconvenience of this fiction—it is not a new one. In consequence of its existence, a course grew up and prevailed for a long time of securing the attendance of three Lords, that being the number necessary to make a House. During the Chancellorship of Lord Eldon this was done, and whether the two Lords who sat with the Lord Chancellor were Law Lords or not, appears to have been regarded as a matter of but little consequence. Of course, the Lord Chancellor was glad to get two other Law Lords, but there was no personal obligation on 1235 the Law Lords to attend. In the next place, there was great uncertainty as to whether there would be a sitting for the hearing of appeals, the Lord Chancellor being required in the Court of Chancery. So unsatisfactory was this state of things, that in 1811 a Committee was appointed to inquire into the mode of exercising the appellate jurisdiction of your Lordships' House, and whether any improvement in the mode ought to be effected. Well, the inquiry produced this result. The Committee found as a matter of fact that the Lord Chancellor was frequently obliged to be absent in consequence of his attendance being needed in the Court of Chancery and elsewhere, and it was also found that some 290 or 300 appeals were in arrear. On these facts, it was suggested by the Committee, that in order to enable the Lord Chancellor to attend in the House of Lords more frequently, an additional Judge in Chancery should be appointed. It was believed that if a Vice Chancellor were appointed, the Lord Chancellor would be enabled to sit in this House for appeals on three days in the week during the Session. This was not very satisfactory. Subsequently the appointment of Deputy Speakers was recommended; but there was no provision for the attendance of other Law Lords. In 1813 a Vice Chancellor was accordingly appointed, and the Lord Chancellor had more time to give to appeals. On looking at the first volume of the Reports for 1813, I find the list of causes heard or set down for hearing, amounted to 240, of which only eight or nine were English—the majority were were Scotch, and a few were Irish. Lord Redesdale sat with Lord Eldon in the majority of the cases, and no Court of two members could have been stronger; but in one-third of the whole number of appeals heard during the Session of that year, Lord Eldon sat alone. I say nothing about the fact of some of the appeals being from his own decisions in the Court of Chancery. I presume that on many occasions, he was assisted by two lay Peers; but, except in one case, there is nothing said about those noble Lords having opened their mouths. The exception is that of a Scotch marriage—a case which seems to have required much investigation. There was a question as to whether the lady had given her consent to the marriage, and a lay Lord is reported to have said that when the gentleman asked the lady 1236 she made a courtesy, and that the lay Lord took to be a consent. It could not be considered a satisfactory state of things when the hearing of appeals, the decisions on which were to be pronounced in the name of the House of Lords, was relegated to a single Judge and two non-assisting lay assistants. In 1823 and 1824—Lord Eldon still having charge of the Seals—matters were not found to be much more satisfactory. An inquiry was instituted, and a Committee recommended the appointment of Deputy Speakers, and also that there should be ballot for Lords to make up a quorum, the penalty for non-attendance to be £50. That was a somewhat singular proposal to make for the purpose of insuring the due administration of justice. I now come to the state of affairs in the time of Lord Lyndhurst. During that time I myself was present on several occasions when Lord Lyndhurst sat on appeals with two lay Lords, who took no part in the discussion, who employed themselves, perhaps, in reading a newspaper, and who seemed to take very little interest in what was going on. Then it happened that the case did not always end in one day, and that the next day there were two lay Lords who were not the same who were present on the preceding day; and on the third day, when the decision was given, two others, who had not been in attendance on either of the previous days. On one occasion it ocurred to me—much to my mortification—to have to accompany a very learned French jurist, who unfortunately understood English, to the House of Lords when an appeal was being heard; and I was obliged to tell him, in answer to a question which he put to me, how matters were really being conducted, although I was in hopes that he would not see through it. Now, to speak of your Lordships' House deriving dignity from a jurisdiction exercised by a Court so constituted seems to me to be a political mistake of a very serious character. So far from such a state of things contributing to the dignity of your Lordships' House, I can, I confess, see nothing more undignified than that one or two noble Lords should be placed in the painful position which I have just described—taking part in judicial proceedings in which they have neither share nor interest, and can have none owing to their entire unacquaintance with the law. I can hardly express my 1237 sense of that position in stronger terms than were used by my noble and learned Friend on my right, in the evidence which he gave before the Committee of 1856, when, in answer to a question which was put to him, as to whether lay Lords being present at the hearing of appeals, and evidently not attending to what was going on, was not a cause of disturbance and distraction, Lord Westbury replied—"We have long since ceased to take any notice at all of the lay Lords, regarding them simply as two lay figures." Things could not go on in this way, although matters had began to mend. The tenure of office of Lord Eldon had been very long; but since his time the changes in the occupants of the Woolsack have been more frequent, and you have in consequence secured the services of a number of learned Lords which you could not have obtained at the period to which I have been referring. Owing to that happy accident, the conduct of business in the hearing of appeals has been somewhat more satisfactory. But it was, nevertheless, in 1856 deemed to be highly expedient to appoint a Committee to inquire what provision was required for securing the more efficient exercise of the functions of this House as a Court of Appellate Jurisdiction. That Committee was very strongly constituted. Among the lay Lords on it were the late Lord Derby, Earl Grey, and the Lord Privy Seal (Earl Stanhope). I cannot go through the whole list, for I have not the names before me—but there were very eminent Peers on the list. Among the law Lords were Lord Brougham, Lord Lyndhurst, Lord St. Leonards, and the Lord Chancellor (Lord Cranworth). Altogether, it was a very strongly constituted Committee. Well, what was the Report of that Committee? They reported that evidence had been given before them which spoke of the tribunal as it was constituted as giving satisfaction, but that the large preponderance of opinion was in favour of decided changes being required in the conduct of its appellate business. They go on to speak of the defects of the tribunal. Among these they enumerate the uncertainty in the attendance of Peers at the hearing of appeals and the misconstruction arising from the presence of lay Peers; and the House, after what I have stated, will not be surprised to hear that this was naturally a subject of complaint on the part of the witnesses, 1238 and that it made a considerable impression on the Committee. They speak also of a second grievance; and this I may observe is involved essentially in the very constitution of the tribunal, which, being constituted as the House of Peers, sits only while the House is sitting. The second grievance is that, as the House usually sits only from February to August, while the ordinary Courts of Law sit from November to August, three months are lost with respect to the hearing of appeals. Your Lordships will further observe—although I do not know that the Report of the Committee refers to the point—that the House sits only four days a-week. The Committee found, besides the inconveniences already referred to, that complaints were made by certain persons in Scotland—though Lord Moncrieff, who was at the time Lord Advocate, did not, I believe, take that view—that the administration of Scotch law had been sometimes unsatisfactory, no Peer having a seat in the House who was acquainted with the system of Scotch judicature, or who had been on the Bench in Scotland. Lastly, came the question of the greater expense created by the present mode of hearing appeals as distinguished from that involved in the hearing of appeals in the Courts below. Such were the main points touched upon in the Report, and I think you will regard it as a very strong Report, coming from men who can scarcely be looked upon as being desirous of change. I now beg leave to call your Lordships' attention to the work of Lord St. Leonards on the Law of Property, from the introductory chapter of which it will be seen that he, in a great degree, concurs in the inexpediency of this House exercising an appellate jurisdiction in the mode in which it has been exercised, and which I have endeavoured to describe. The witnesses examined before the Committee of 1856 were, I may add, numerous, and well acquainted with the subject. My noble and learned Friend to whom I have already referred was, I think, Solicitor General at the time, and he gave very full testimony with respect to the grievances which I have mentioned. He described the way in which a noble Lord would come into the House during he hearing of an appeal, read the newspaper or chat with other noble Lords, and not appear to take any interest in the particular case in hand. The Report 1239 of the Committee, moreover, refers to other matters which may be worthy of your Lordships' attention, although I by no means put them in the fore front of the question. It speaks of the inconvenience arising from the mode of delivering judgment, caused by the circumstance that it is delivered as the judgment of the House of Lords. It points out that it is delivered in the form of a speech very often, and not ex cathedrâ, but standing up; and that in consequence, a noble Lord is occasionally led to become more excited in its delivery than is quite consistent with the tone of judicial eloquence; and that occasionally, finding his way to the Table, he would vigorously emphasise parts of his judgment by slapping the table from time to time. Fault was also found with the absence of forensic attire. But these are points on which I do not now wish to lay any stress, in comparison with the other points which I have mentioned, such as the loss of time, the expense, and, above all, the pretending that the decisions given are the decisions of the House of Lords, instead of being, as they are, sometimes the judgments of one noble and learned Lord, or, at the most, of three or four Law Lords. In the evidence a case is detailed to which, but for its mention there, I should have some delicacy in referring. Vice Chancellor Malins, then Mr. Malins, was examined, and gave strong evidence in favour of the very measure I am about to submit to the consideration of your Lordships—the transfer of the appellate jurisdiction from this House to a bonâ fide Court, and not to a Committee calling itself the House of Lords. He furthermore gave this instance of what occurred in the presence of Lord Brougham, in order to give his Lordship an opportunity of replying to him by question and answer; but he never did so. A case was decided under the Acts for winding up public companies—a case of considerable importance to a large number of persons who had embarked their fortune in an unprofitable adventure, and were called upon in many cases to sacrifice the last penny they had to make good their engagements. It was a case of the first importance with a view to ascertain who was liable, or, in technical language, who were and who were not contributories, and to have the law clearly laid down as to what constituted a contributory, in order to govern—as it would 1240 govern—a vast number of cases thereafter. It so happened that the Master in Chancery, a near relative of Lord Brougham, before whom the case came, had come to a decision on a particular case which involved the liability of a Large number of contributories. His decision was appealed against, and after argument, was overruled by Vice Chancellor Knight Bruce, a Judge of considerable eminence, acuteness, and ability, whose eulogy I am not here to pronounce. The case came here on appeal before Lord Brougham, sitting alone, with the usual two formal adjuncts, the lay figures by his side. He affirmed the decision of his relative, reversing that of the Vice Chancellor Knight Bruce. Afterwards, a case thought to be of a similar character came before the same learned Lord on appeal, with the same adjuncts—he was not Lord Chancellor at the time, but the Lord Chancellor happened to be unwell—and he decided that case in a different way:—the result being that your Lordships were obliged to do that which is of rare occurrence indeed—re-hear the two cases, or otherwise there would have been two inconsistent decisions on the same subject. Suitors, therefore, suffer from a real grievance. I am not saying that Lord Brougham did anything here which he would not have done sitting in Chancery; but, imagine the effect which must be produced on the public mind by this decision affirming the decision of a relative, followed by an apparently contradictory decision in another case. I hesitated much in referring to this case till, on reading once more the Report and evidence, I found that Lord Brougham himself cross-examined Mr. Malins about the case, and asked—
Are you not aware that Lord Cottenham sent me his written judgment, in which he gave the same opinion as I had arrived at?The answer was to this effect—Yes; and that made matters a great deal worse, for Lord Cottenham gave that judgment without being present or having heard, a syllable of the argument.There can be no doubt, therefore, that the present mode of administering the appellate jurisdiction of your Lordships' House is most unsatisfactory. The Committee to which I have referred recommended the appointment of two Deputy Speakers, to receive a salary of £6,000 a-year each; that the House should be authorized to sit for hearing appeals 1241 notwithstanding the Prorogation of Parliament; and that the Court should be so constituted as to include a Scotch Member, well versed in Scotch law, whose assistance should be constantly given in hearing and deciding questions of Scotch law. To that recommendation we owe a very valuable adjunct here, to whose assistance I am constantly indebted in the hearing of appeals. But the Report was not otherwise acted upon.
§ LORD CHELMSFORDA Bill was introduced and passed this House.
§ LORD CHELMSFORDNo; it was dropped.
THE LORD CHANCELLORIn either case the argument is strengthened. The House of Commons have acquiesced in your appellate jurisdiction for 200 years, and it cannot now be in any way disputed; but they did not acquiesce in it very willingly originally, and are not now disposed to assist you in extending it, unless for some useful object and for some good reason. The proposal for the payment out of the public purse of additional officers here would be met by some such suggestions as these—"You have a number of learned Lords who receive certain pensions. We do not say that, in return, they are obliged to attend the Court of Appeal, nor do we take upon ourselves to interfere with your arrangements. But while we shall be glad to assist you in constructing a good Court of Appeal, we do not feel called upon to support the state of things which now exists." These were the arguments urged when I attempted to reserve to your Lordships some power over appeals. I have not mentioned one great difficulty in connection with the jurisdiction of your Lordships as a final Court of Appeal. You are a final Court of Appeal in all matters coming from England, Scotland, and Ireland; but you have no jurisdiction whatever in respect of the Colonies. Now, a number of our colonies are regulated by purely English law—in mercantile cases, land cases, cases involving the title to land, and so on, precisely the same law exists there as that which governs us. That being so, it is perfectly possible for the Privy Council to come to a decision upon matters of plain English law directly in conflict with your Lordships' conclusion upon the identical point here. Thus, from the separation into two bodies of the appellate jurisdiction, 1242 you run not an inconsiderable risk of having two conflicting decisions which cannot be set right. I say that practically you do not and never have exercised this jurisdiction since the Bishop of London's Case; you have renounced it. At present, by accident, you are able to form a small Committee of about four, sometimes five Members, to hear cases which this House does not hear at all. The robe of dignity with which you have attempted to invest that Committee has conferred no dignity at all, because you are obliged to confer the same robe of dignity on the lay figures who take part in the sitting without credit either to themselves or the House. Further, you have entangled your working body in the folds of this robe. You have prevented them from sitting for three months in the year, or for more than four days in a week. I have, therefore, endeavoured to find a remedy for the evils complained of; and although I have been complained of for not being more speedy in my proposals, I think, on the contrary, I deserve some credit for not having been over-hasty in attempting to overthrow existing institutions. There was a scheme recommended by some witnesses—among them I believe my noble and learned Friend (Lord Westbury), that there should be constituted a Committee of Peers somewhat similar to the Judicial Committee of the Privy Council, who should report to your Lordships' House at large in the same way as the Judicial Committee reports to the Sovereign. That was all very well in appearance; but was there any substance whatever in that scheme? Was there any chance that the House as a body would vote upon such reports, and overturn the decisions of the Law Lords? Another recommendation was, that there should be Peerages for life, in order to secure a greater number of Lords in this House. Earl Russell, I believe, proposed that system; but it did not find favour with your Lordships; at all events, it was not adopted. The question, therefore, is how really to secure a Court of Appeal which shall sit as a Court, which shall be a real and not a sham Court, which shall exercise jurisdiction by its Members sitting, not as a Committee of this House, to whom they are supposed to be responsible, but to whom, in fact, they owe no responsibility whatever; which shall take upon itself the whole responsibility, and sit, as other Courts do, throughout 1243 the whole legal year for the administration of justice. I will now tell your Lordships what I propose in order to provide an effective remedy for the great evils of the present system. I think the objects I have in view may best be carried out by constituting one great Court of Appeal, which should comprise the jurisdiction of the House of Lords and also of the Judicial Committee of the Privy Council. By that means you would never have the possibility of conflict between the decisions of two co-ordinate Courts of final jurisdiction. I propose that the Court should be formed in two Divisions, but not with such strictness that the Judges of one Division cannot act in the other. The Judges should have the power of migrating from one Division to the other, as their services may be required; the system of Division being simply intended for convenience, and for the discharge of the ordinary business of the Court when circumstances might not require that there should be a meeting of the full Court. My next proposal is that one Division should consist of all Peers who have filled the office of Lord Chancellor, or certain specified high judicial offices either in Great Britain or Ireland. I would also include in this Division all Peers who can be fairly designated as learned Lords—there have been some from time to time in this House—I mean men who have actually practised as barristers for a given number of years. There should likewise be a power to place in this Division all Privy Councillors who are capable of being appointed on the Judicial Committee of the Privy Council, if it should be thought fit. In the other Division there should be the Members now forming the Judicial Committee of the Privy Council, and others to be selected. And there would be this important provision for securing attendance—namely, that in each Division there should not be less than three, and not more than five, who shall be paid £6,000 a-year each. Such a provision would, I think, secure the attendance of those who would be bound at all times to attend to the duties of the Court. There is this further provision—that noble Lords who have filled the office of Lord Chancellor should receive a payment for attendance in addition to their pension which should raise their allowance to £6,000 a-year—those who are over 70 years of age would not be expected to attend. The Lord Chancellor would be at the head of the 1244 Court, and I propose that the three Chiefs of the Common Law Courts—the two Chief Justices and the Chief Baron—should be members of it. I further propose that a certain number of years' service should be required to entitle the Members of the Court to a pension, but in other respects that they should hold their appointments on the same footing as the Judges of the Common Law Courts hold theirs. By this means we should get rid of the difficulty, and, to a certain extent, I may say, the degradation, of persons attending the highest Court of Appeal, half as volunteers, in matters in which they have not the slightest concern, and in which they do not take the smallest interest. I should now wish to say a few words with respect to the amount of authority, not altogether inconsiderable, with which I have been supported in these views. I very much desired, had it been feasible or possible, from a feeling for which I have been upbraided as being slow, wanting in my duty, and so on, to retain as far as could be the system which at present exists, by means of a report to the Judicial Committee of your Lordships' House, in the manner I have already described. I found, however, that it was doubtful whether this could be done, and almost everybody I consulted disapproved the idea. My noble and learned Friend has moved for the communications made to me on the subject by the Lord Chief Justice, Mr. Justice Lush, and the Master of the Polls. The Lord Chief Justice strongly recommends the formation of a real bonâ fide Court, to consist of Law Lords, of the two Divisional Chiefs of the High Court of Justice, and of four Lord Justices of Appeal, with salaries of £6,000 a-year. The reason I have introduced the clause requiring not less than three and not more than five, who should be paid for attendance, is this—There was considerable difference of opinion on the subject among the witnesses before the Committee of 1856. Several expressed the opinion that three ought always to be the number; many thought three not sufficient, and held that there ought to be five; and others—with whom I am inclined to agree—said that experience would be the best test in matters of this kind. Until experience therefore has decided, I think the best course will be to secure the attendance of five; though I dare say 1245 that other Members of the Court, who may not be under the same obligation to attend, as not receiving salaries, will give their services, especially in important cases; but in minor matters the attendance of three will be sufficient. Another question arose on the evidence before the same Committee as to the mode in which the judgment of the Court should be given. The question was, whether the judgment was to be that of the whole body without saying who joined in the decision, or whether judg-should be given severally by each Judge. There was one important witness, who said that he thought experience would be the best test in this matter also. I reserve the decision on the point for determination by the Court in the manner it shall think most fit. Well, then, the advantages of the system which I now propose are—first, the continuous sitting of the Court from November to February—which will give three months additional in the year; secondly, the sitting for at least five days in the week, instead of four, as now. It is a question whether Saturday may not be devoted to preparing judgments. A further important reform will be effected by giving over to this new Court the appellate jurisdiction of the Court of Chancery as it at present exists and of the Exchequer Chamber. That will prevent the great evil of two appeals; for I think it would be of essential service to the suitor to have but one appeal instead of two. It will present a Court of ready access, at a cost considerably less than the suitors have at present to incur. I have made inquiry, and I find that cases of the most ordinary description cannot be lodged before your Lordships' House without an expense of nearly £100. The actual fees of the House are only £23 or £24; but then the preparation of the case is very costly, it being thought necessary to print 80 copies, for no earthly reason that I know, at a cost of some £60 or £70. Now, a tenth of the sum that is now required to lodge the case would be much nearer the mark. Then this Court, which will sit continuously, will take appeals from the Colonies, from Scotland and Ireland, and will decide once for all, thus avoiding all conflicting decisions. Your Lordships are aware that we have several ex-Chancellors among us, and that we have the most valuable assistance of a noble and learned 1246 Lord from Scotland (Lord Colonsay). The Master of the Rolls and another noble and learned Judge are Members of your Lordships' House, but their occupations in their respective Courts have made it impossible for either of them to hear appeals in your Lordships' House during the time I have occupied the position I have the honour to hold. I think your Lordships must feel that it does not add to the strength of your position or to the dignity of the House of Peers, that the highest function which can be assigned to any body whatever of men should be exercised in that seemingly listless and perfunctory manner which has been too often witnessed in your Lordships' House. No decision of the House of Lords for the last 25 years has been a decision of more than five or six of its Members; and hence the country view its decisions with little more reverence than that of a single Judge. I do not wish your Lordships to come to a hasty conclusion with regard to the Resolution I am about to move. The subject is of grave importance, and requires most careful consideration.
§ Moved to resolve, That it is expedient that one Imperial Supreme Court of Appeal be established which shall sit continuously for the hearing of all matters now heard by way of Appeal before this House or before the Judicial Committee of the Privy Council, and that the Appellate Jurisdiction of this House be transferred to such Supreme Court of Appeal.—(The Lord Chancellor.)
§ LORD CAIRNSMy Lords, I am very glad my noble and learned Friend does not propose to ask your Lordships to-night to come to any decision upon the very important question which he has brought to our notice. Since, then, my noble and learned Friend does not wish us to express any final opinion at the present moment, it seems to me more convenient, with a view to the discussion hereafter of the Resolution my noble and learned Friend has moved, that I should move the adjournment of the debate. The very large proposition which my noble and learned Friend has made requires most careful and dispassionate consideration. I am glad to hear that my noble and learned Friend does not intend to deal with the jurisdiction of the House of Lords in those matters to which he has referred. I am sure I need not say for myself and every one of your Lordships that the question of appellate jurisdiction is one upon which there should be no personal prejudice on 1247 the part of this House. Speaking for my noble Friends, I may say further, that I think if ever there was a question on which we are bound to make a covenant, as it were, with our own personal inclinations, it is the question of appellate jurisdiction. The establishment of such a tribunal as my noble and learned Friend describes would, no doubt, relieve your Lordships of a burden of no inconsiderable weight. But, having said that much, I must state that I did not altogether follow my noble and learned Friend in the course of his argument. Nothing, as it seems to me, can be more unprofitable than to examine into the early history of the judicial powers of this House, or of the manner in which it became possessed of its appellate jurisdiction. That jurisdiction, be it good or evil, is as completely settled as that of any other Court in the country, and has been exercised for a very long period of time. The noble and learned Lord referred to the Committee of 1856, when the subject of the appellate jurisdiction was considered. I think my noble and learned Friend has hardly done justice to the proceedings of that Committee, considering that such men as Lord Aberdeen, the noble Duke opposite (The Duke of Argyll), Earl Granville, Lord Lyndhurst, Lord St. Leonards, and other statesmen and lawyers of great eminence took part in its labours. But there is one remarkable circumstance connected with that Committee—that they reported unanimously in favour of your Lordships' retaining the jurisdiction in your own hands.
EARL GREYsaid, there were divisions in the Committee on that subject, but they were not recorded on the Minutes.
§ LORD CAIRNSI am reading from the Report, and I do not find anything there to suggest that anything has passed in an opposite sense. It is also a remarkable fact that not one of the witnesses examined before the Committee advocated a transfer of that jurisdiction from this House, with the exception of the present Vice Chancellor Malins; and the reason he gave was this—that it was absolutely necessary that the tribunal of appellate jurisdiction should sit for the convenience of suitors during the whole of the legal year. Other reasons urged against the exercise of appellate jurisdiction 1248 by your Lordships' House are—that there are no means of securing the attendance of an adequate quorum of a particular class of Peers, and that it is a jurisdiction which entails great expense. The Committee in their Report, which I hope your Lordships will consider very carefully, did not arrive at any decision on this matter. There is another point to which I wish to draw attention in this matter, and that is that I think we are too much in the habit of regarding this as merely an English question. I venture to say that the interests of England in this matter of the appellate jurisdiction of this House and of the Privy Council are very much less than those of the other parts of the Empire. My noble and learned Friend did not make it clear whether the Court he is desirous of establishing is to be a Court of Final Appeal, or whether he intends that there shall be any intermediate Court of Appeal. But we have not England only to deal with in regard to this matter of appeal—we have also to deal with Scotland and Ireland. If this House had only to deal with appeals from England, three or four weeks would dispose of them. But this House hears also appeals from Scotland and Ireland, and we have got some indication of the opinion of Scotland on the point. The Scotch witnesses examined before the Committee were unanimously in favour of the retention of the appellate jurisdiction of this House. In the Committee of 1856, Lord Aberdeen made an observation which is entitled to great weight. He called attention to the fact that the Act of Union provided that under no circumstances should there be any appeal from the Courts of Scotland to any Court in Westminster Hall. Now, if you create a Court holding its sittings in London, and dealing with cases as our Courts deal with them, will not a feeling arise in Scotland that appeals are brought to a Court which will be looked on as nothing more than one of the Courts of Westminster Hall? Again, with regard to Ireland, there is a provision in the Act of Union that appeals and writs of error shall lie to the House of Lords. Great excitement prevailed in Ireland during last century on this question. It was settled by the Act of Union; but if Irish appeals are brought to what may be termed an English Court considerable discussion, and perhaps dissatisfaction, 1249 may arise. My noble and learned Friend wishes for only one appeal; but is it possible in the case of Scotland, Ireland, and the Colonies, all of which have an intermediate appeal at home, that their cases should be brought from the primary Judges to the proposed Final Court? Considering that 99 appeals never go further than the intermediate Court for every one which comes to the Court of Final Appeal, that is absolutely impracticable. I understand, indeed, that it is proposed to abolish an intermediate appeal in England, but to retain it for Scotland, Ireland, and the Colonies. At present the Colonies, by their very constitution as colonies, have an appeal to the Queen in Council, which is disposed of on the advice of the Judicial Committee, and I believe they are satisfied with that tribunal, which stands extremely high with them. My noble and learned Friend may think it a sham and a form for Her Majesty to pronounce judgment upon the advice of Her Privy Council; but, for myself, I view it as one of much importance as regards India and the Colonies. Our Colonies take pride in the fact that they derive their law, not from an English Court, but from the actual Order of the Sovereign in Council, and to do away with this would destroy one of the links which most closely bind them to us. This, indeed, is a very much larger question than the tone of my noble and learned Friend's speech would indicate when he speaks as if it were quite at our option whether we retain this jurisdiction or not. Are we to pass a Resolution, or a Bill, which assumes as its basis that the jurisdiction of the Privy Council and of Her Majesty in Council is to be abolished, without any consultation with our Colonies and other dependencies, which are not represented in this or in the other House of Parliament, and without their having an opportunity of offering an opinion upon it? That would be one of the strongest measures ever taken in this country. Until I see the Bill I will not say a word on the constitution of the proposed Court. As far as I understand it, my noble and learned Friend proposes to roll up all the legal Peers, with a number of other persons the description of whom was only faintly indicated, and all the Chiefs of all the Courts, into one large Committee. Whether that would be a satisfactory course I will 1250 not now discuss, though I think every objection that could possibly be urged against the working of the present system could be made with much greater weight against such an institution as is proposed to be substituted. In the proposed Court it would be impossible for the head of it to be other than the Lord Chancellor—indeed, I do not suppose my noble and learned Friend would propose any other arrangement. It seems to me, however, that for the Lord Chancellor to sit in such a Court after the jurisdiction of this House is abolished would involve a change, not only in the constitution of this House, but in the office of Lord Chancellor. That might be viewed with satisfaction in some quarters; but it is impossible that such an officer should be changed from year to year. While offering these observations, I can assure my noble and learned Friend that I am anxious to consider every part of his plan, and I trust your Lordships will arrive at a decision which will be satisfactory and beneficial to the country.
§ LORD WESTBURYsaid, he did not intend to enter on the discussion of so large a question, for it was impossible to express an opinion whether the House ought to part with the judicial authority which it possessed, and probably exercised satisfactorily, until it was known whether the new tribunal was one to which it might conscientiously and with a sense of duty yield up its functions. He had hoped to hear from his noble and learned Friend an explanation of the proposed scheme, for the two things could not be considered separately. He would, therefore, move that the debate be adjourned, and be the Order of the Day in immediate priority to the second reading of the Bill constituting the Supreme Court of Appeal. If his noble and learned Friend would lay his Bill on the Table, the House would be ready to consider it; and if the proposed tribunal were satisfactory as a Court of Appeal for the whole Empire, and entitled to unqualified approval, their Lordships might, as honest men, part with their jurisdiction; but till then they could not do so.
§ LORD CAIRNSalso thought an adjournment would be convenient. He hoped his noble and learned Friend on the Woolsack would give the House an assurance that the debate should not be 1251 resumed till the second reading of his Bill, and that sufficient time—say a fortnight—should elapse between the printing of the Bill and the second reading.
THE LORD CHANCELLORsaid, he had intended to have the Bill printed, and not to ask for a second reading of it until a result had been arrived at on this Resolution. He doubted whether it would be in Order to adjourn the debate to a day depending on some other day not yet named, and he would propose, after laying the Bill on the Table to-morrow and naming a time for the second reading, to fix the resumption of this debate for the previous day.
§ LORD WESTBURYsaid, he was anxious to expedite the production of the Bill, and he was not without hope that if it at all answered the promise held out, the House might be able to deliberate upon it and upon this Resolution in time for the Bill to be sent down to the other House and so become law this Session. This, however, depended on the prompt production of the Bill.
THE LORD CHANCELLORsaid, he had the same object in view as his noble and learned Friend; and he had already stated that he should submit the Bill to the House to-morrow night. The introduction of the measure in that shape on the present occasion was greatly influenced by something which fell on the first night of the Session from a noble Lord who said he should be glad to see a transfer of jurisdiction made, provided a proper Bill was brought in. They might fix the adjourned debate on the Resolution for a day before they took the second reading of the Bill.
§ THE DUKE OF RICHMONDpreferred that the adjourned debate on the Resolution should be fixed for the same evening as the second reading of the Bill. He did not see any advantage that would be gained by taking the adjourned debate on one night and the second reading on another.
§ The further debate adjourned sine die.