Lords Sitting of 1 July 1823

APPELLATE JURISDICTION.
The adjourned debate on the Resolutions respecting the Appellate Jurisdiction being resumed,
Lord Colchestersaid:—My lords; having been placed in the chair of the committee, whose report is now under your consideration, I wish to offer some observations upon the important subject to which it relates. The subject itself, as your lordships have seen, divides itself necessarily into two parts; first, the prospective measures which it may be fit to adopt, for preventing the future growth of appeals; and secondly, the measures of immediate arrangement which are indispensably necessary for disposing of the appeals now depending before us.
The prospective measures relate separately to Scotland and to England,
As to Scotland, from whence the large majority of appeals has flowed in upon us, and such as creates the whole of our present embarrassment, we have entertained little or no difference of opinion upon the possible benefit to be derived from rendering the forms of proceeding in the Court of Session more concise, and better adapted to separate matters of law from matters of fact; allowing perhaps in some cases an intermediate appeal in Scotland, and in other cases making the decision in Scotland final, but in no case bringing any questions but those of law to this House, as the supreme court of appeal in the last resort.
How far such improvements can be accomplished will, of course, require previous investigation by persons best qualified to judge of their nature and probable effects: and to establish a commission for that purpose is the object of the bill already presented by the noble earl who has taken the lead in calling the attention of your

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lordships to the present state of our appelate jurisdiction.
As to England, prospective measures have also been suggested, respecting the administration of justice in the court of Chancery, from whence the English appeals chiefly proceed, and with a view to the same end, though by means somewhat, different.
The first of these measures, a revision of the practice of the court of Chancery, has, as I understand, already reached the first stage of its progress; and a complete report has been made to the noble lord on the woolsack, of all the regulations established from time to time by those who have heretofore holden the great seal; upon the foundation of which report, that noble and learned lord may, in conjunction with the other two judges of his court, proceed to make great improvements in the administration of justice in that court.
Another measure, more directly bearing upon the object before us, is to make the decisions of the court below final, in certain cases to be limited and specified.
Other measures also, for transferring particular matters to the cognizance of other courts and judges may be of great advantage, and chiefly by allowing to the lord chancellor more disposable time for the service of this House.
Some branches, however, of the lord chancellor's jurisdiction cannot be separated from his office, without great detriment to the public interest; more especially those of lunacy, bankruptcy, and his visitatorial authority; besides other high points of his jurisdiction, for which time must be always sufficiently provided.
But, my lords, whatever benefit may result from these prospective measures, it is manifest that they must be comparatively of slow operation; and we must at once enter upon some immediate arrangements for disposing of the mass of appeals now depending.
A larger allowance of time, for hearing appeals, is the first and most essential requisite; and to this, we doubt not, your lordships will accede readily; we could have wished to propose six days instead of three; but five appear to be quite in dispensable.
With the necessity of a more frequent attendance, comes the necessity of enforcing that attendance; and we have conceived that a rota of three lords for each day, taken by ballot, is perhaps as con-
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venient as any mode, and far better than leaving it to accident, or still worse to solicitation.
Still, however, there remains behind, the last and greatest difficulty;—namely, who shall preside in the house if the lord chancellor be absent; it being assumed that the chancellor's attendance in the Court of Chancery cannot be dispensed with, for the time which the hearing of these appeals would require.
If that be assumed, there remains only to resort to the auxiliary commission which by the custom of parliament always exists; and to take for Speaker in the chancellor's absence, the person who shall be therein named; not as Vice Speaker or as Deputy Speaker, for no such title is given to him in these commissions, or in the Journals of this House: And such person, when called into use for judicial purposes, must, if a commoner, obtain from the House the permission to speak and deliver his opinion upon the case, if he is to become an efficient servant of the House for these purposes.
That such an expedient is practicable, I entirely concur with the committee in thinking; the authority of any person named in such commission to be Speaker is unquestionable; a memorable instance of this sort occurred in 1691, when lord chief baron Atkyns, sitting as Speaker to hear appeals, and a cause being called on in which he was a party, he withdrew; and the lord Halifax was elected by the House Speaker pro tempore, who heard that cause; after which lord chief baron Atkyns resumed his seat, and proceeded with the rest of the appeals. And according to our own standing orders* such a Speaker may, if a judge or privy-counsellor called by writ, be required and admitted by the House to speak and deliver his opinion. I allow that, according to our practice of putting abstract questions to the judges, it may be doubted (although according to the terms of the writ of summons, I think it could not be very reasonably doubted) whether such opinion may not also be given upon the case which actually awaits your decision. But at all events such Speaker will have the same powers in judicature, as have been exercised by all those commoners who have sat on the woolsack as chancellor or lord keeper of the great seal, for so many years, and in so many successive
*Standing Orders, 1660, No. 4.

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reigns. I should indeed mis-state my own individual opinion, if I stated this mode to be very convenient or very satisfactory; but I cannot doubt that it is practicable and conformable to the law and usage of parliament.
And here, my lords, I might conclude the observations with which I have troubled you; but I feel that I should not discharge my duty to myself or to the House, if I did not proceed; for although I agree that the measure proposed by the committee, in this choice of difficulties, is perfectly regular and practicable, I do not think it the most beneficial or the most suitable which might be adopted.
The noble earl who moved originally for the committee, and who has first brought this report under your consideration, has stated, frankly and fairly, that his personal opinion would have been for sending alt appeals upon Scotch questions of property to a tribunal of Scotch judges in Scotland; and his own high authority, I know, has the support of other authority greatly to be respected (lord Aberdeen); but, my lords, the noble earl also fairly admitted, that the prevailing opinion of those most acquainted with Scotland, had induced him to yield up that opinion, in deference to the alleged wishes of Scotland, that their appeals should be heard in England, and in the House of Lords.
Now, my lords, my opinion goes not only that length but further; and I cannot but think that the mode of hearing appeals most satisfactory to Scotland would be, not only in England, and in the House of Lords, but before the lord chancellor of Great Britain; and that, in the supreme court of appeal, the subjects of every part of the United Kingdom should continue to have their causes adjudged before the highest law authority in the realm.
But how can this, your lordships will naturally ask, how can this be accomplished? Upon what principle, and by what means? My answer is, upon the principle of reserving the highest judicial duties to the highest judicial office, and delegating those duties which are of inferior importance to authorities of inferior rank and degree; and the means for so doing are in the present ease obvious; as the lord chancellor has in all times been accustomed to supply his place when absent from his own court, by the attendance of the Master of the Rolls, or by the standing commission of assistance, which enables
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him to call upon any one of the twelve judges, with the aid of two masters in chancery, to transact the judicial business of that court. No practice has been a more frequent in all times; and most of us re member it for long periods of time, when lord Kenyon as Master of the Rolls, or Mr. Baron Eyre, or Mr. Justice Buller, sat successively in the court of Chancery to supply the lord chancellor's place. And I think it may deserve very serious consideration, whether, by either of these means, or by both combined, the business of the court of Chancery may not be well transacted on those days, during the session of parliament, upon which your lord ships may require the assistance of the lord chancellor here upon appeals; and the business of chancery may be carried on even with less interruption by such judges, who are not liable to be called away to attend cabinets, or by the obligation of their personal attendance upon the sovereign.
Then as to the time of the lord chancellor's absence from his court. In every week during the session of parliament, which in ordinary years seldom extends to five months, he might be present in his court, for one day at the least, to hear those matters of special jurisdiction which require his personal authority; also during every adjournment of the House he would be free to resume his seat there; and for the other half year, during the recess of parliament, even after deducting, the long vacation, he would have nearly half; the juridical year for uninterrupted attendance in his own court.
"Stare vias super antiquas," is a safe principle upon moat cases of policy; but upon none more than those which concern the accustomed forms of administering justice.
My lords, I have to entreat your pardon for troubling you thus at length upon this latter question; and the more so, as, although it is practically the most important of all, it does not come before you for your vote this day. It may, however, be well to weigh these considerations together, between this time and the next meeting of parliament, when the plan, whatever it may be, must at once be put into active operation.
The first and immediate question for your determination is, the number of days which you will think fib to give to appeals, whoever may preside; and I am persuaded that your lordships will agree

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upon the largest number which can be allotted, consistently with practical convenience.
Lord Redesdalesaid, that the accumulation of appeal business was not attributable to any delay which took place, but to the increasing population and wealth of the empire, and the consequent increase of litigation. The due superintendance of justice in that House had been of great importance in preserving the due superintendance of it in the courts below. He was convinced that it was the bad amalgamation of the Scotch feudal law with the forms of the Roman civil law, that had led to so many appeals from Scotland. That unnatural amalgamation had given rise to a protracted form of action, and to a mass of papers that had been well described on a former evening, by his learned friend on the woolsack. Indeed, the lord president of the Court of Session had stated, that he was completely embarrassed by the accumulation of papers which came before him; and had complained that, after hearing cases during the day, he had to read during the evening a mass of documents amounting, in the year to 27,000 closely-written pages. The committee had thought it right to issue a commission, to inquire whether any beneficial change could not be effected in the law of Scotland. He did not believe that the lieges of Scotland were so hostile to the trial by jury, as a noble lord had represented them to be. He was, however, of opinion, that the trial by jury ought to be administered by the Court of Session, and not by a separate court as it was at present. There would have been no arrear of appeals, if only the due proportion had come from Scotland; and therefore, if any method could be devised to prevent Scotch appeals from being brought before their lordships on points of fact, instead of points of law, no arrear would in future take place; The abstracting of the lord chancellor, for three days in the week, from the court of Chancery, must prove highly injurious to the suitors in that court; and it was a debt of justice which the people of Scotland owed to the people of England and Ireland, not to let the accumulation of their business prove a burthen to the suitors in the English and Irish courts of justice. If any of their lordships could find out a better plan than that which was under their consideration, he would willingly embrace it; but
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if they could not, he would advise them to try it; if for no other reason, at least for this—that half a loaf was better than no bread.
The Lord Chancellorsaid, that to a man in the vigour of youth and health, an attendance of five days in the week to the hearing of appeals would be a severe duty; but he believed that no one who knew the business, would undertake that duty, along with the heavy business of the other court.
Lord Ellenboroughsaid, that the more they heard the opinions of the learned lords, the more difficulties presented themselves. It was said, that, from the impossibility of attending for five days a week to appeal cases, concurrently with attention to other important business, there must be a Deputy Speaker. Now, he would ask, were the Speaker and the deputy to hear cases at the same time, or alternately? If at the same time, then they might have two parties bearing causes, and giving, perhaps, different opinions on the same points, and each as the opinions of the House of Peers. But, the most important point was, was the Deputy Speaker to be a peer? If they were to have a commoner presiding over three peers who might hear one part of a case, and then over three others who might hear the next, and then again over three more, who might have to decide upon what they had only partially heard, great inconvenience would arise to their lordships, great dissatisfaction to the parties, and the character of the House of Peers, as a court of judicature, would be lost.—The noble lord went on to contend, that the compulsory clause would have the effect, not of increasing, but of diminishing, the number of days for hearing appeals. On the first day of the session, the names of all the peers were to be put into a glass, and the days of their attendance were to be fixed, according to the rotation in which they were drawn. Now, it was possible that the names of peers living at the most distant pans of the empire might be drawn for the first attendance. Then, time would be required to send a notice to that effect. So that three weeks would be lost, before the business of appeals could be commenced. Besides, it should be recollected, that many peers might rather prefer paying the fine, than submit to the greater inconvenience of coming at an early period so great a distance. Then,

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what would be the situation of the House? Witnesses and counsel would be in attendance at a vast expense; and even if one of the three peers were absent, no business could be done. He contended, that no advantage would be gained by this compulsory clause. But his chief objection was, to the appointment of a commoner as a Deputy Speaker, by which he contended their lordships' judicial functions would be compromised.
The Earl of Rosslynargued in favour of the right of appeal to their lordships by the people of Scotland, and from thence the necessity of some measure by which the arrears of appeals might be disposed of. As to the objection against the presidency of a commoner, he maintained that it was without foundation, and cited several instances in which commoners had presided in their lordships' House for years. It was not, therefore, contrary to the constitution of their lordships' House, and their frequent practice, that commoners should be in the chair. But, even with the proposed alterations, he did not think their lordships could make any great additional progress in the despatch of the appeals before them. Still, something should be done; and he expected that a great deal might be done by some good alterations in the courts below. With respect to the compulsory clause, and the objection that three peers might have to hear a part of a case upon which three others who had not heard the whole might have to decide, he would observe, that there was nothing to prevent the peers who should hear the first part from remaining till the case was concluded. The objection, therefore, on this head, was without foundation.
The Earl of Liverpoolsaid, that whatever might be done for the future regulation of appeals, it would be necessary to devise some plan to get rid of the arrears. The plan of giving five days a week to the hearing of appeals instead of three, would have that object. He had no objection to let the resolution stand thus:—The compulsory attendance to be temporary, and only until the arrears were reduced to 40 or 50, or any number to be agreed upon. Then, the question would be—if they were to have five days attendance, could the lord chancellor attend consistently with his other important duties? He thought not. Indeed, this was not denied on any side. Then, if the lord chancellor could not at-
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tend, there must be a Deputy Speaker to, preside on these appeals, It was objected, that this Deputy Speaker might be a commoner; but if he were, their lordships would not be in any new situation; for, in the very best times of the constitution, commoners had presided in their lordships' House. Even in the present day, the practice was by no means unfrequent. The noble lord then repeated his former objection to the impolicy of dividing the office of Lord Chancellor, from that of Speaker of the House of Peers. In conclusion, he said, that though the proposed plan was not free from objection, it was the only one by which they could get rid of the load, of business which had arisen from the accumulation of appeals. He then moved the first resolution, with the verbal amendment to which he had alluded.
Lord Ellenboroughproposed, that only the names of the peers present on the first day should be put into the glasses to be drawn for attendance in rotation; by which means the delay which might arise from peers living at a distant part of the country would be avoided.
The Earl of Liverpoolsaid, that after the first three resolutions were decided upon, he would postpone the consideration of the others to a future day, by which time would be given for further consideration.
The Earl of Carnarvonrepeated the objections which he had made on a former; night, against the establishment of a tribunal, where a part of the case only might be heard by those who might have to decide upon the whole.
The first and second resolutions were put, and agreed to without a division. On the third resolution, which went to make the attendance of peers compulsory,
Lord Hollandsaid, he would not oppose the resolution on the ground that the House had not the power to make the regulation. He admitted it was consistent with the constitution of their lordships' House; but he doubted the policy of it. He did not think it would be equally efficient, as if peers were left to their own inclinations. The lords forced to attend might appear in their, places, and answer to their names, and then leave the House, or, if they remained, they might refuse to vote, or to give permission to the Deputy Speaker to give his opinion, and thus the whole object would be defeated. He

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thought it would be better to leave the: attendance to the honour, and sense of; duty, of their lordships.
Their lordships divided: Contents 27 Not-Contents 11.