Lords Sitting of 26 June 1823

APPELLATE JURISDICTION.
The Earl of Liverpool, in rising to move the order of the day for taking into consideration the report of the committee on the Appellate Jurisdiction, said, it was pot his intention to proceed further than to bring in a bill which had been prepared, founded on the report of the committee, which might be read the first time, be printed, and then stand over for further consideration. In 1813, their lordships had under their consideration the best mode of facilitating the administration of justice in that House, and they had then resolved to sit three days in the week daring the session, for the purpose of hearing appeals. It was satisfactory to their lordships, that whatever might be the difficulties, either in that House or in the courts, the House had nothing to reproach itself with; for it had most steadily adhered to the standing order then made. But, on looking to the returns on the table, it appeared that the House had not been able (if he might use the expression) to overtake the business, and the grievance was as great now as it was in 1813. The noble earl here referred to the report of the committee for the present state of the appeals, from which it appeared, that the appeals from England were annually 5; from Ireland 8 or 9; and from Scotland 40. In, addition to this numerical extent from Scotland, the time which the Scotch appeals occupied was much greater than those from any

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other part of the kingdom. The state of the case was this—whatever might be the occasion of it, the whole of the grievance was the appellate jurisdiction from Scotland. If they came only in proportion to the judicial business from other parts of the empire, the business in that House could easily be kept within proper bounds, and the effect would be very great in the other courts, particularly in the court of Chancery, from which the distinguished individual who presided in that court was withdrawn, to attend to the duties which grew out of these appeals. The first question which naturally presented itself to every mind, was this—would it be possible to remove the appellate jurisdiction of Scotch causes? If that were practicable, and conceived to be advisable, it would at once remove all the difficulties which they now laboured under. And he had no hesitation in stating his opinion (not meaning to say that it was the opinion of the committee), that with respect to removing the appeals from Scotland, he saw no objection to the principle, but very strong and forcible reasons in favour of it. [Hear, hear.] What were the cases in which the House was called upon to decide in the dernier resort? They were called upon to decide on the law, of which as English lawyers they knew nothing; the Scotch law being as different from the law of England as that of any foreign country. He knew that his noble and learned friend on the woolsack, with the accumulated experience of thirty years, had administered that law as much to the satisfaction of the people of Scotland, as he did that branch of the English law to the satisfaction of the people of England. But, with the exception of his noble and learned friend, and another noble and learned lord not now present (lord Redesdale), and two or three individuals at the bar who had made it their peculiar study, the whole of the bar and the bench of judges were entirely unacquainted with the law of Scotland. Looking then, at this, he would say, that the most simple remedy would be, to relieve the House from the Scotch appeals, and appoint a special jurisdiction for the purpose. He was fully aware of the difficulties which would stand in the way of such a measure; and on the score of public opinion (so far as the committee could collect) it appeared, that the opinion of the people of Scotland leaned very strongly to
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the appeals to the House of Lords; and therefore it might be expected that they would look with disfavour on his suggestion. But there was another objection still more powerful. If there lordships were of opinion that the Scotch appeals should be removed, still, before the House could adopt any such prospective measure, they must get rid of the arrears. It would consequently be a very considerable length of time, before their lordships could adopt any such measure, and the committee had, therefore, looked to other remedies. The greatest advantage resulted from the simplicity of our law and the precision in our pleadings in checking appeals; and it was believed that if a complete revision could take place in the form of proceedings in Scotland, and instead of being in writing, that they should be by oral discussion and argument, it would simplify those proceedings, and the same advantage would result as was felt in this country. Though much might be done in this way, yet all could not be done; but he could see no objection to a trial being made, and the committee had strongly recommended the appointment of a commission thoroughly to investigate the subject, and from whom a report might soon be expected; at least, no time would be lost by the adoption of the measure, and it could do no harm; for the number of appeals to be disposed of was so great (and nothing prospective could be done till they were got rid of), that the House would be in possession of the report before that period arrived. The first proposition, therefore, which he had to submit to the House was, a bill for the appointment of a commission, with reference to the inquiry to which he had alluded. He came now to the more pressing question of what was to be done with the existing arrear. If the House could do away with the Scotch appeals prospectively, he did not see that they could send the arrears to any other tribunal. As far, therefore, as regarded them, the House must deal with them in some way or the other. The House had already made the effort of sitting three days in the week, certainly to the prejudice of the administration of justice elsewhere. He saw, therefore, no way but increasing the number of days during which the House would sit for hearing appeals; and he was at first for proposing to extend it to six days; but those best

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acquainted with the extent of the judicial business of that House were of opinion, that five days in the week would be as much as could be devoted to the purpose. The next consideration was, the proper steps to be taken, with a view to enforcing attendance in the House; for though the three days' attendance had not been enforced by any compulsory means, the committee were of opinion, that there would be no objection to resorting to it, and they had suggested, that the same means should be resorted to for that purpose, as took place on the bill of pains and penalties against her late majesty. The result of which would be not more than one day's attendance for each peer during the session; which was not so very appalling, particularly as any other noble lord might attend as a substitute.—There then arose the very important consideration of who was to sit as Speaker of that House to discharge the duties which the lord Chancellor at present discharged? He would at once state, that the whole object he had in view would not be attained, if it extended no further than the relief of the business in that House, and did not also extend to the Court in which the noble and learned lord presided. The benefit which he (lord L.) looked to was, to enable the noble and learned lord to give that portion of his time to the court of Chancery which he at present devoted to the judicial business of that House. He had no new principle introduce to the House, for it had been the invariable practice for his majesty to appoint one or more persons as deputy Speaker of that House, and at she present time the chief Baron of the Exchequer was the first in the commission, and the chief Justice of the King's-bench the second. It was not, therefore, necessary for the deputy Speaker to be a peer, and it might not be unimportant to mention, that it was consistent with the standing orders of the House, to give the deputy Speaker the right (not to vote, for that they could not give) but the right to give his opinion when their lordships required it. He had, perhaps, used the word "right" improperly. He meant, not that the individual had the right, but that their lordships might, for their own purpose, if they thought fit, give the right to the individual. With this view, therefore, there was no difficulty in dealing with that part of the subject, and he did not see what other mode there was
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for getting rid of the arrears. If it had been found impossible to draw the lord Chancellor from the court of Chancery for three days, even, without retarding the business of that court, and the House were to make it necessary for him to attend for five days in the week, he would clearly be unable to attend to any part of the business of the court of Chancery. He (lord L.) knew there had been other modes by which it was thought this object might be attained. It had been, supposed, that it might be attained by taking away part of the business which was executed by the lord Chancellor in matters of lunacy and bankruptcy—both very important branches of business; and he should be unwilling to see any part of it withdrawn from the lord Chancellor. The jurisdiction in matters of lunacy was very important, and the decisions in bankruptcy were without appeal; which was a strong reason why their lordships should be averse from withdrawing it from the lord Chancellor. But the more urgent reason was this, that if they did so withdraw them, it would give no sufficient relief; for, supposing that the lord Chancellor was freed from attending to bankruptcies and lunacy cases, the number of additional days on which he might be able to give his attention to the business of appeals in that House, would be comparatively few, and altogether insufficient to discharge the whole of the business which would await their lordships' consideration. He thought, therefore, that that project would be insufficient to remove the present inconvenience. There was another proposition suggested. It was, that the office of lord Chancellor should be revised, and that it should be separated from that of Speaker of their lordships' House. To this he had extremely strong objections. He was, in the first place, unwilling to see that high and ancient office frittered away by regulations for reducing or dividing its duties; but even if that were done, it would, he maintained, still be insufficient: for, as it was said that the appointment of a vice-Chancellor increased the business in one respect, by leaving appeals from him to the Chancellor; so he would contend, that the business before their lordships would rather be increased than diminished, by the separation of the office of Speaker of their lordships' House, and president of the court of Chancery. Appeals would still be made from the court of

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Chancery to their lordships, and very probably in greater number, when the same individual did not preside in both. There fore he contended, that this mode, if unobjectionable in other points of view, would insufficient to relieve their lordships from the present inconvenience; and upon the best consideration which he could give the subject, having turned it over in his mind for some time back, he did not see any mode by which they could relieve themselves from their present difficulty, unless, indeed, they withdrew the appellate jurisdiction of Scotch case' altogether, and even then the relief would not extend to the cases which had been already entered for their lordships' decision. He had thus given their lordships a general outline of the intended measure. He would now move, that the bill which had been prepared for this subject be read a first time.
The Earl of Carnarvonsaid, he could not remain silent after the extraordinary proposition which he had just heard from the noble earl opposite. It was not necessary for him to go at that moment into an inquiry into the causes of this vast accumulation of business before their lordships. He admitted that whatever was the cause, the accumulation was a great evil; but when he looked to the extraordinary remedy proposed, he would ask, whether the evil would be half so inconvenient as this extraordinary remedy—a remedy which consisted in the establishment of a tribunal, such as had never before been heard of in their lordships' house. He admitted that the great number of appeals was an inconvenience; but it was an inconvenience which could not be avoided. It was incidental to their lordships' situation, as the highest court of judicature.—The noble lord then contended against the appointment of a Speaker in their lordships' house, who was not a peer. It was stated that part of the new plan for the hearing of Scotch appeals was, that three peers should sit in turn, presided by the now speaker. Now, to this he had the strongest objection. It would, he maintained, be derogating from their lordships' dignity and attended with inconvenience to the suitors. Three peers were to sit me day, and be succeeded by three others on the next. He would suppose an appeal commenced on one day; a part of it would be heard by the three peers who sat on that day; the next day three
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others of their would have to hear its continuation, who had not heard a word of the opening; three others would have to hear another part of the case on the ensuing day, and the three peers who might have to decide, after the whole had been gone through, would have to give judgment, on perhaps a most important matter, of which they had only heard the concluding part. How was if possible that strict justice could be done by such a mode of administering it? But then it might be said, that the Speaker, or the individual to fill that office, would be acquainted with the whole of the Circumstances of the case. That might be but he, not being a peer, could only give his opinion, at the desire of the peers pre sent; and then, what would it amount to?—that the decision would not' be that of their lordships, but of the individual who had heard the case. This mode' of proceeding would, he contended, be most unsatisfactory to the public, and highly derogatory from their lordships' character, as constituting the highest court of appeal. It was said, that the attendance of their lordships to these hearings should be compulsory. He could understand the justice of that principle, if the same lords were obliged to hear the whole of one case; but he could not understand it when three lords were to hear one part, and three other lords were to decide upon that which they had not heard. According to this new plan, three of their lordships were to be brought compulsorily from distant parts of the kingdom, from their local duties, to act a part in the most ridiculous farce that ever was thought of. If he had not heard the very solemn manner in which this proposition was introduced by the noble earl at the head of his majesty's government, he should have believed that it was intended to satirize and ridicule their lordships' privileges. As far as the appellants before their lordships were considered, it would, he thought, be doing them more injustice to oblige them to resort to this new tribunal, than if they had left them for their remedy to any other tribunal in the country. For his own part, nothing but compulsion should induce him to be present at any such proceeding.
The Earl of Rosslynsaid, that as a member of the committee, whose report was before their lordships, and at whose recommendation this plan had been submitted, he could not sit silent after what

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had fallen from his noble friend. He maintained, that the proposition now before their lordships was in perfect accordance with their practice heretofore. Supposing the lord chancellor to be absent, was it not the practice to have a deputy Speaker, who generally was not a peer of parliament? Or, suppose the king were to exercise his prerogative, and place a commoner on the woolsack, as lord keeper, would it be said that their lordships privileges were thereby annihilated? The lordships had seen the law administered, and well administered, by commoners who sat pro tempore, on the woolsack, and who had been called upon by their lordships to give their opinion. There were also cases in which: the opinions of learned lords had been set aside by the opinions of peers, whose attention bad not been so much given to the study of the law. He would contend that the House would not, by the proposed plan, be in a different situation from that in which they were already placed, with respect to the presidency of a lord keeper, or a deputy Speaker, except that noble lords would have to attend by compulsion, and in rotation; and that, he thought, would be better than leaving it open to noble lords to attend at the solicitation of parties concerned. He contended, that the plan was in perfect accordance with the recognized practice of their lordships; and that, if they declared themselves incompetent to this appellate jurisdiction, there were none of their duties to which they might not make the same objection.
The bill was read a first time.