§ MR. BOWYER
Sir, I rise to call the attention of the House to the present state of the appellate jurisdiction in the last resort, and to suggest measures calculated to remedy the defects of this branch of the public service. I am aware that the subject is under investigation in another place; but I submit that that is not a sufficient reason why it should not be discussed here. If the matter regarded simply the privileges of the other House the case would he different; hut it concerns the general administration of justice and the rights of the whole community. I think, therefore, that this House ought not to remain a stranger to the discussion of matters so deeply affecting the whole body of the Commons of England. Sir, I propose to consider, first the working of the present system, and then those remedies which the public service in the administration of justice requires. I must remind the House that there are three branches of appellate jurisdiction administered by the House of Lords, namely, 1st, appeals from the Courts of equity; 2ndly, writs of error; and 3rdly, Scotch appeals. Each of these presents various anomalies and inconveniences. Let us see, in the first place, who are the Judges who sit in the House of Lords. They are the Chancellor, the Lord Chancellor, three ex-Chancellors, and the Lord Chief Justice. The senior ex-Chancellor, though he still delights that illustrious assembly with his eloquence and wisdom, cannot, at his advanced age, he expected to attend regularly to the judicial business 2046 of the House. The Lord Chief Justice is prevented by the duties of his eminent office from sitting often on appeals in the House of Lords. There remain two ex-Chancellors. They seldom sit together. If there be one sitting with the Chancellor, and they differ in opinion on an appeal, there is no judgment, and the judgment of the court below is confirmed. This occurred five times during last Session. It is most unsatisfactory to the suitors. Let us now consider the subject of appeals from the Courts of equity. If the appeal is from the Chancellor, it is heard by the Chancellor himself in the House of Lords; and this is not only an anomaly, but a scandal. It is true that he is usually assisted by another law Lord; but he would naturally be in favour of the view of the case which he had before taken, and might influence the other law Lord. If, however, they differ, there is no judgment. And if the Chancellor is assisted by two law Lords, either of them agreeing with the Judge appealed against decides the case. When the appeal is from the two Lords Justices, the result is equally unsatisfactory. They are, by their learning and consummate judicial ability, equal, if not superior, to any two judges in the House of Lords; and if the appeal be heard by the Chancellor with two law Lords, and there is a difference of opinion, the decision is that of two Judges against two Judges. But in some cases the Chancellor hears a cause assisted by the two Lords Justices. Then the appeal is, in most instances, from three Judges to two, or, if it be from the Chancellor and Lords Justices to three Judges in the House of Lords, still one of the three is the Judge appealed against. Suitors in such cases will naturally say that the decision of their appeal depends on the chance, whether one of the ex-Chancellors or another happens to sit with the Chancellor to hear it. This is most unsatisfactory, and derogatory to the character of the court of appeal. We come now to writs of error from the courts of common law. In those cases the decision of the common law Judges in the Exchequer Chamber may be reversed by two or three equity Judges who never held a brief in a court of common law. And at any rate the Lord Chief Justice is the only common law Judge in the House of Lords. It is true that the House summons the common law Judges to assist in hearing difficult cases 2047 or writs of error. But this is unsatisfactory, for the Judges can take no part in the proceedings. They cannot ask a question of the counsel, nor suggest a point in argument, and they sit as silent as the mace on the woolsack. They can only answer such questions as the House puts to them at the conclusion of the arguments. In Scotch appeals the system is still more absurd. The appeal is from Scotch Judges of the greatest eminence and experience, to English Judges who have no knowledge of Scotch law. It is true that at present there is in the House of Lords a noble Lord (Lord Brougham) who, being remarkable for the extent and variety of his knowledge, is learned in the law of Scotland. But this is an accidental circumstance, and even that noble Lord cannot be supposed to be so well acquainted with Scotch law as the Judges who have passed their lives in its practice and administration. To exemplify the results of this system, I need only refer to the case of Stuart v. Fullarton, decided by the late Lord Wynford in the House of Lords, which was so manifestly contrary to the law of Scotland that it was found necessary to pass an Act of Parliament to amend the judgment of the House. And on the 31st of July, 1851, Lord Aberdeen said—He knew that many changes had been introduced and much light had been thrown on the Scotch law by several of the Judges of England, especially Lord Mansfield, but, at the same time, it was unsatisfactory that the law should be administered by persons who, in spite of their best intentions and highest integrity, frequently entertained feelings at variance with that system of law which they were expounding. What (he added) would be said if a man had to appeal from this country to the Parliament at Paris, and yet it was undoubtedly true that the French law was less removed in spirit and principle from the English law than the law of this country was from the Scotch law.This subject was, in the year 1851, considered by the Faculty of Advocates of Edinburgh, and they unanimously approved a report of a committee of their body, recommending that the House of Lords should have the power of summoning the Scotch Judges to assist in Scotch appeals, and that a person should be appointed, thoroughly conversant with Scotch law, to take part in the hearing of appeals from Scotland in the House of Lords. I come now to consider the remedies which may be resorted to, for the purpose of correcting the evils which I have pointed out. The first question on this part of 2048 the subject is whether the House of Lords should continue to exercise the appellate jurisdiction. There are two inherent evils attending the continuance of that jurisdiction—namely, that the House only sits for six mouths in the year, and that there must be two Supreme Courts—the House of Lords and the Privy Council. But to the abolition of the appellate functions of the House of Lords, there are, no doubt, serious constitutional difficulties, for that measure would no doubt weaken the authority and detract from the dignity of the Upper House of Parliament. These reasons make me desirous of seeing some way to improve and to preserve its appellate jurisdiction. With the same view Her Majesty's Government have proposed to create peers for life. I will pass over the legal objections to that course. But on constitutional grounds it seems to me very dangerous. The comparative facility of creating large batches of life peers must tend to destroy the independence of the House of Lords. It is, however, suggested that the Royal prerogative of creating peers for life, supposing it to exist, might be limited by Parliament. But if this were so, another objection would remain. The object is stated to be to give those peerages to ex-Judges, who would assist in hearing appeals in the House of Lords. But then you would have an appeal from Judges in the full vigour of life and lately engaged in the full swing of professional duties at the bar, to Judges who have retired on account of advanced age or ill-health, and, therefore, less competent than the others for the discharge of judicial duties. Another objection is, that such a course would tend to create a distinct class in the Upper House, like the noblesse de la robe in France, who did not amalgamate with the rest of the aristocracy, but were considered an inferior caste. Having regard to these considerations, I beg to suggest, after much consideration, that the ancient constitution of this country points out a remedy for the inefficiency of the present Court of Appeal in the House of Lords. I am prepared to show that by the ancient constitution of Parliament, the Lords and the Judges together formed a great Court of Appeal in the last resort. There were in the early period of our history three Councils of the King, that is to say, the Consilium Privatum, the Consilium Ordinarium, and the Magnum Consilium or Parliament. The former was something like the Cabinet 2049 Council, and consisted of Ministers of the Crown. The second was composed of the Judges, great officers of State and councillors. Its history is somewhat obscure, but it is certain that it not only sat apart as a Council, but also in the great Council or Parliament. Lord Hale, in his Treatise on the Jurisdiction of the House of Lords, p. 12, says, that from the 28 Edw. I. to the 20 Edw. III., the writs summoning the Judges and others of the Ordinary Council to Parliament were in the same form as those directed to the Barons. It may be argued thence that both had the same powers, and some writers hold that it was so. But this was undoubtedly true with regard to the exercise of the appellate jurisdiction of Parliament. Thus Lord Hale says—In ancient times, as in Edw. I. and Edw. II. and the beginning of Edw. III., the Consilium Legale, the Chancellor, justices, &c., were not barely assistants, but had a voice of suffrage as well as of advice in the affirming or reversing of judgments, &c., though, in process of time, the grandiour of the Lords got in effect the whole jurisdiction from the Consilium Ordinarium, and left them only as assistants and advisers, which seems to obtain about the beginning of Ric. II.This participation of the Ordinary Council in the jurisdiction with the Lords is strictly in accordance with constitutional principle; for all temporal jurisdiction in this country is derived from the Crown. Our appellate jurisdiction belongs to the King in Parliament, and the judgment is the King's by the advice of the Lords; and it was therefore competent to the King to exercise his jurisdiction with the advice of his councillors in Parliament as well as of the Barons. The subject, however, will be made clearer by briefly examining the ancient method of proceeding in Parliament. The King in Parliament formed the great remedial Court of the kingdom. When that assembly met, petitions poured in from all quarters. They were received by the auditors and triers of petitions. Palgrave, in his learned work on the King's Council, p. 63, says—The auditors of petitions constituted a Parliamentary Committee composed of some of the Judges and a delegation of Bishops, Earls, and Barons.Hale gives a number of precedents on this subject, and they show that the Judges were always included among the triers of petitions. I will only give three of these precedents. In 14 Edw. II. the triers were three bishops, one abbot, two barons, five judges; 14 Edw. III., four bishops, two 2050 earls, three barons, four judges; 20 Edw. III., one bishop, one abbot, one baron, and four judges; so that in this case there was a majority of judges among the triers. The triers of petitions are classed by Fleta among the King's Courts. It was their duty to receive the petitions and class them, and refer to the proper courts or offices those which belonged to their respective attributions, retaining for cognisance in Parliament the matters which belonged to that highest Court. Now, it is clear that the Ordinary Council shared this important jurisdiction as triers or auditors of petitions with the Lords; and this is a conclusive proof that the Judges and others of the Council were not mere assistants and advisers, as they are now, but a part of the high Court of Parliament for hearing appeals. Palgrave, in his book on the Council, p. 64, and Spencer, in his work on the Court of Chancery, show how this change took place, which reduced them to their present condition of mere assistants of the Lords. What I propose is to return to the ancient constitution of Parliament by restoring to the Judges their power of voting with the Lords on appeals and writs of errror. It is, no doubt, lawful for the Crown to summon the Lords Justices and Vice Chancellors to sit with the other Judges in the House of Lords; and, indeed, any Privy Councillor may be so summoned. If this prerogative were exercised, and the Judges were all empowered to vote in the exercise of the appellate jurisdiction in the House of Lords, a great and powerful Court of Appeal would be constituted—composed of all the Judges of the Superior Courts, and others learned in the law. I should also propose, that it be a rule that no Judge should sit on appeal in any case which he decided in the Court below, and that the Lord Chancellor should never sit on an appeal from himself. There should be a permanent Deputy Speaker of the House of Lords, who should constantly sit there, and preside in all appeals from the Lord Chancellor. There should also be two or three Scotch Judges summoned, who should remain in London during the Session of Parliament, as advisers of the House of Lords in Scotch cases, and who should have votes; and they should be paid a salary to enable them to live in London during the Session. Out of such materials as these the House of Lords might constitute a judicial committee like that of the Privy Council. The new sys- 2051 tem which I have proposed would remove the chief defects of the ultimate appeal to the House of Lords, but still great inconveniences would remain. In the first place the House of Lords sits only during the Session of Parliament, but a Court of Appeal ought to be open all the judicial year, to administer justice. Moreover, if the House of Lords continues to be a supreme Court of Appeal, there must be two Courts of last resort. The Judicial Committee of the Privy Council could not be abolished for the purpose of transferring its jurisdiction to the House of Lords. For the Judicial Committee can sit all the year round, and it gives general satisfaction to the suitors, and it could not be abolished to transfer its jurisdiction to a Court open to the suitors for six months only. Consequently, if the House of Lords be retained as a Court of Appeal, there must still be two supreme Courts of Appeal. This is a most serious defect of the judicial constitution of the kingdom. I may exemplify this proposition by observing that on the Wills' Act, for instance, there may be one construction given by the House of Lords, and another by the Judicial Committee. The same may occur on questions of domicile and the construction of wills and deeds. And, indeed, a single Court of ultimate appeal is essential for developing and forming a system of jurisprudence. It is doubly important in this country. For it is a peculiarity of our system that the main part of it rests entirely on precedents. We have no code or corpus juris. The law makes the precedents, and the precedents make the law. The consequence of this vicious circle is, that the law is very uncertain. It is, indeed, in a transition state. The Judges of late act on the principle of seeking to do substantial justice. This is wise, but it increases the uncertainty; and it often happens that after a case has been argued by the ablest counsel, no one can say what the judgment of the Court will be. Lawyers do not often tell these secrets to the laity, but the truth is, that the Judges do what they please. If it were not for their general high character and independence, this country would suffer from that miserable state of servitude in which the law is vague and uncertain. This state of things can only be corrected by a single supreme Court of Appeal constantly sitting, which would tend to form and settle the law; and, without such a Court, it is vain to 2052 think of codification. The Court of Cassation, in France, is an example of this subject, for it has done much to form the jurisprudence of that country, by its decisions as the sole supreme Court of Appeal. Another defect of the House of Lords is, that it is not a regular permanent Court. The ex-Chancellors are not bound to attend, and the other Judges are fully occupied with their duties elsewhere. The attendance is, therefore, uncertain. It is impossible that such a Court should be consistent and steady in the principles on which it administers justice. Ours is, indeed, the only country that has no independent Court of Appeal. The only real remedy is to create a single Court of Appeal, like the Court of Cassation—to take the most competent persons from the bench and bar in every branch of the profession, and make a great Court of Appeal, invested with all the jurisdiction now divided between the House of Lords and the Privy Council—entirely independent, permanent, and constantly sitting to hear appeals. The Judges of this Court would have leisure to become perfect judges of appeal; they would be in constant communication with each other, and they would learn one from the other, and so enlarge their minds—and be perfectly independent of the opinions of the Courts below. Without such a Court a code would be comparatively useless. This Court of Appeal would also fill a serious want of our legal institutions—that of a Criminal Court of Appeal. This is a great anomaly. It is true that a Judge may, on the trial, reserve a point for consideration in the Exchequer Chamber. But he I is not obliged to do so. Recourse may be had after judgment to the Secretary of State. But it is surely unconstitutional that the liberty or life of a man should depend not on an appeal to a Court of law, but on a Minister of the Crown. At common law, a writ of error in a case of felony does not stay execution, so that a man may be hanged, pending the writ, though it may turn out in the Court of Error, that the judgment was contrary to law; and so Blackstone says, that the reversal of judgment may be some consolation to his friends. The statute 89 Vict. c. 69, provides, indeed, that execution shall be stayed in misdemeanor, when a new trial is applied for; but in capital cases the writ of error is still only allowed ex gratiâ. The attention of the Common Law Commissioners was directed to this strange ano- 2053 maly, and they, in their eighth Report, strongly recommended that all judgments, both in felony and in misdemeanor, be rendered liable to revision by new trial on cause being shown. The difficulty was, however, stated, that if such appeals were allowed in criminal cases, the Courts would have no time to decide on them. The objection is strange. It would vanish, if an independent permanent Court of Appeal were constituted. That Court might also be referred to by the Government on questions of legislation and law reform, and so give valuable assistance to the Legislature in various ways. I have now concluded this subject, the importance of which will, I hope, be my excuse for detaining the House for so long a time. The hon. Member then moved—That the present state of the Appellate Jurisdiction in the last resort is unsatisfactory; that a Supreme Court of Appeal ought to be constituted, presided over by permanent Judges of Appeal.
§ No hon. Member seconding the Motion, the Motion dropped.