Lords Sitting of 30 June 1823

MARRIAGES IN FOREIGN COUNTRIES.
On the committal of the Marriages at St. Petersburgh bill,
Lord Hollandsaid, that the present bill had his entire concurrence. He only regretted that, it did not extend to all marriages contracted by British subjects, and solemnized in the chapels of our ministers abroad; for, although no lawyer, he had no doubt of the validity of such marriages himself yet many respectable persons did entertain doubts on the subject; and, though lawyers when ap-
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plied to had given an opinion favourable to the validity of such marriages, yet such opinion had always been clogged with the observation, that there had been no decision, on the subject. He regretted that, during a session in which so much of the law relating to marriages had been taken from the common law, and placed on the Statute-book, no statute nor clause, nor even dictum, had been uttered, for setting at rest this question of the legality of marriages solemnized in factories abroad, or in the chapels of our ambassadors.
The Marquis of Lansdownconcurred in opinion with his noble friend as to the necessity of some declaratory law on the subject.
Lord Colchesterwas also desirous that another session should not pass without some measure being brought in for setting the question at rest.
The Earl of Liverpoolentirely agreed with what had fallen from the preceding speakers. At the time the present bill was brought in, he had said, that the only objection which could be made against it was, that being confined in its operation to marriages solemnized at St. Petersburgh, it might give rise to doubts of the validity of other foreign marriages. He believed it was a completely recognised principle of our laws, that marriages made in foreign countries, according to the laws of those countries, were valid; but the present bill had no reference to that case. There were two ways in which marriages might be regularly solemnized by British subjects abroad. They might either be made according to the laws of the respective countries, or the parties might be married in the House of the minister. So long as the factory at St. Petersburgh existed, marriages solemnized by the chaplain there were conceived to be of the same effect as if they had been solemnized in the house of the ambassador; but it having happened that the factory at St. Petersburgh had been put an end to, the question had arisen, whether marriages made there, not according to the laws of Russia, were valid in this country. It was with a view to that particular difficulty that the present bill was brought in. He should have no objection to a general measure, if it were thought necessary.
The Earl of Lauderdalesaid, there was no doubt as to the law regarding marriages made in foreign countries according to the laws of those countries; but the doubt

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was, as to marriages made in British factories abroad, or in the chapels of ambassadors and, respecting these, there ought not to exist any doubt, since a short bill might be passed on the subject during the present session.
The Lord Chancellorsaid, that during the fifty years he had been in the profession, he never heard of any doubts till the late bills were brought in, whether marriages performed in the chapels of our ambassadors were valid. There was no doubt that they were good marriages; and he was persuaded that no contrary opinion would ever be sanctioned by judicial authority.
The bill went through the committee.

APPELLATE JURISDICTION.
On the order of the day for the second reading of this bill,
The Earl of Liverpool The Earl of Liverpool moved the first resolution, recommended by the select committee, for increasing the number of days during which the House would hear appeals, from three days to five days in the week.
Earl Grosvenorobjected to the compulsory clause for enforcing the attendance of peers, and thought it would be worth while to see first, whether a voluntary attendance could not be procured. If this resolution were adopted, it would lead to a singular anomaly; part of a cause might be heard by three peers, another part by three other peers, and the conclusion by three others, who had heard perhaps little or nothing of the case, and the deputy Speaker could only give his opinion. At present, the House had the advantage of the opinion of the noble and learned lord on the wool-sack; which, notwithstanding that habitual doubt and hesitation which he had himself good-humouredly acknowledged to belong to him, certainly, swayed the opinion of many noble lords. They had also the advantage of the noble and learned earl's vote, which they could not have from the deputy Speaker.
Lord Manvershoped the House would pause before they adopted this resolution; for if agreed to without modification, the House must sit all the summer.
Lord Erskinethought, that if the bill which had been read the second time that evening passed into a law, their lordships would, in a short time, be under no difficulty at all on the subject of appeals; because he was sure, that if they appointed proper commissioners (of which he had
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no doubt) they would have faithful and enlightened assistance from the judges of the court of session, and from the eminent persons of the Scotch bar, and the best effects might be anticipated. In his opinion, the great arrear arose from their having brought before them points of fact, and not points of law. It never was intended that appeals on facts should occupy their lordships' time. But if might be said, what was to be done in the interim, while the inquiry was going on by the commissioners? He would say, nothing should be done. They must go on as they could. The present seemed to be meant as a preliminary step; and he for one could not consent to any change in the manner in which the House should exercise its jurisdiction. For his own part, he was so well satisfied with the manner in which the judicial business of the House was con ducted by his noble and learned friend on the woolsack, assisted by another noble and learned friend (lord Redesdale), that he professed he could see no remedy for the evil, but impounding him in that House [a laugh!]. It was very true, they might lose the benefit of their services by death; but he believed they were too much men of honour, seeing their usefulness, to suffer any thing but death to cause the House a loss of their services. He might say, that he knew something of the law; but of Scotch law he was as ignorant as a native of Mexico. And yet he was quite as learned in it as any one of their lordships who could be appointed deputy Speaker, and who could but bring to his office a legal apprehension. For his own part, he was above seventy years of age, and could not be compelled to take any part; and he should, therefore, if the resolutions were adopted, leave their lordships to them selves.
The Lord Chancellorsaid, he did not see because his noble and learned friend was above seventy years of age, that he should, therefore, have such an utter obliviousness of what was going on, that he should not assist in the business of appeals in the House of Lords. He thought that in the case of any future Chancellor retiring, the minister should make his attendance a condition of his pension. A noble earl (Grovenor), in the plenitude of his knowledge, might perhaps have no doubts on any point of English, Irish, or Scotch law; but, when the noble earl

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took upon himself to taunt him with hesitation, and doubting, he would tell that noble earl, that when they were deciding causes in the last resort, and their decisions were to give the law to other courts, they could not be too cautious. The time was fast approaching when his natural life must terminate; and for his judicial life, it had already been too long; but, when the termination of his natural life did arrive, that degree of caution, which was called doubt and hesitation, would be his greatest comfort; because, by means of that caution, he had reversed decrees, and prevented the injustice of A keeping possession of property which of right belonged to B. If their lordships would compare his conduct during the twenty years which he had sat on the judicial bench, with the conduct of any of his illustrious predecessors—and he did not fear the comparison; on the contrary, he invited it—he was sure that the comparison would not turn out to his discredit. On that account he could not but feel indignation, when he was informed of the language in which his conduct had been arraigned in another place, by those who ought to have known better. It had been publicly asserted, that appeals in the House of Lords were nothing more than appeals from the lord chancellor in one place, to the lord chancellor in another. He should like to know, whether the persons who dealt in such assertions were aware that there were many appeals to their lordships from the Chancery, in cases which had never been heard at all by the lord chancellor, but which had been decided by the Master of the Rolls, or the Vice-chancellor? For instance, the great case of Clinton v. Cholmondely was not an appeal from the Lord Chancellor; and there were a number of other appeal cases now before their lordships of a similar description. Besides this, he should like to know whether the gentlemen in Westminster-hall had yet to learn, that lord chancellors were not ashamed to retract their opinions, when they had season to believe that those opinions were formed upon erroneous grounds. He would undertake to say, that not one of die distinguished characters who had sat before him upon their lordships' woolsack; had ever shewn the slighest reluctance to reverse his judgment, when it was shown to be incorrect; and he would fearlessly ask, whether he himself had ever exhibited any unwillingness to reconsider before
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their lordships any of the decisions to which he might have previously come in another place? He could say most conscientiously, that he never had; and for that very reason, the insinuations which had been thrown out against his judicial conduct were as cruel and vexatious as they were unfounded and unjust. He had never upon any occasion declined, on the contrary he had made it his continual practice, to state at length the various grounds upon which he rested his decisions; in order that the bar might be enabled to declare to their clients, whether those decisions were correct or not. And he defied any man to point out a single case where the correctness of them had been doubted, in which he had not expressed his gratitude to the party who suggested the doubt. If persons acquainted with the practice of his court had made upon his conduct the observations which had been made upon it by those who were totally unacquainted with it, he should indeed have felt them acutely: but he was happy to say, that those observations did not proceed from those who had the best opportunities of marking his conduct. They came from those who knew little or nothing of the subject—who had scarcely ever put a foot into his court; and who were not therefore particularly well qualified to judge of its proceedings. He would add, that, upon that very account, they were bound, in common honesty, to abstain from throwing out random insinuations, which were calculated to hurt, in the opinion of the king's subjects, an individual, who, if he was not a great judge—and he did not venture to call himself a great judge—at least filled a great judicial situation.—Having said thus much regarding the doubts and hesitations with which he had been taunted, he now came to the subject more immediately before their lordships. The bill then before the House ought not to be considered with reference to the present lord chancellor, but all future lord chancellors; And it appeared to him, that however sedulously they might attend to their judicial duties in that House—and he could assure their lordships, that whether in office or out office, he would always attend in his placed whilst strength was left to him—no reform that their lordships might make in their own judicial regulations would effect much good, unless a very great change were, at the same time, made in those of

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the Court of Session. It was the peculiar happiness of the people of England, that they had a system of law, no matter bow it had been constructed, and an administration of justice, superior to that of any other country. The division of the courts of law from the courts of equity was so admirable, and at the same time so necessary to the administration of speedy justice, that until something like it were established in Scotland, it would be impossible for their lordships to do enough, whatever alterations they might make in their appellate jurisdiction. In making this observation, he did not mean to reflect either upon the learning or the judgment of the members of the Court of Session—by no means. It was the system of which he complained, not of those who administered it. So involved and complicated was it, that it was almost impossible for any man who perused the different papers in a Scotch appeal, to discover what the point was, about which the parties were quarrelling; Here the learned lord entered into a description of the manner in which the papers of a Scotch lawsuit increased in its different stages; first from the summons to the memorial; then from the memorial to the answer, in which a distinguished Scotch advocate had confessed to him, that it was the practice to insert any thing and every thing the party chose; and then from the answer down, through all the intermediate stages, to the decree, by which time the papers were swollen into an immense mass.—The learned lord then proceeded to complain, that when the judges in the court of session gave their decision, they merely stated the nature of it, without explaining the reasons on which it was founded. Hence it happened, that it was frequently not satisfactory to the party against whom it was given; and it was a fact that was undeniable, that appeals were often made from Scotland to their lordships, in order to discover the reasons on which the judgment rested in the courts below. He bad once thought, that the establishment of a court of error in Scotland, by calling in all the judges to review the case which had been decided by a portion of them, would tend much to diminish the number of Scotch appeals. He had been since told, that such was not likely to be the result of it. Indeed, one objection that had been made to it was the expense. But he could not see how it applied, since at present an
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appeal could be made by reclaiming petition from one division; of the Court of Session to another; and the only difference which his plan would have made would be, that the appeal would be to the whole court instead of to a part of it. He had, however, abandoned that idea; arid he now said to noble lords, with regard to the plan contained in the bill before the House, "If it be not the best, have any of you any thing better to propose? If you have, propose it; if you have not, examine whether this plan be not better than your existing system." He believed that one noble lord had suggested, that it might be expedient to take away from-their lordships all Scotch appeals. If that could be done constitutionally, it might be well; but he was afraid it could not. He had now been conversant in Scotch causes for forty years. Whilst at the bar, he had been counsel in many of, the most important of them: whilst he was Chief Justice of the Common Pleas, he had; attended regularly when they came before the House; and he thought that since he had been chancellor, nobody could justly charge him with treating them with negligence. Experienced as he was in them, he would say that they occupied his attention, not only while hearing them ins that House, not only during the intervals when he was enabled to detach his thoughts from the cases he had heard, elsewhere, but also during many a night which their lordships had devoted to much more interesting pursuits. With that experience to direct him, he again said that the remedy for these numerous appeals must be administered in the courts below in the first instance, and in that House in the second. Without, some such remedy, it would be quite impossible that those of them which happened to be in arrear, could ever be overtaken. The learned lord then asked leave to offer a few observations to the House upon the court of Chancery, in which he-trusted their lordships would not so much consider him the person presiding in that court, as an individual peer declaring his opinion upon a point in which the whole nation was interested. He believed it was a generally admitted truth, that the greater attendance a judge gave to causes, the more causes he had to attend to. Now, under the present increase of business in the court of Chancery, it would be quite impossible for the lord chancellor, if be only attended to it three days in the week,

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to perform the duties of his situation, in any manner at all adequate to their importance. The question then was, what relief could their lordships give to the individual who filled that distinguished office, in the discharge of his two-fold duties—he meant those in the court of Chancery, and those in the House of Lords, as its Speaker? He believed that if the constitution would allow of it, the best thing that could be done would be, to prevent the Scotch causes from coining into the House of Lords at all; but as, according to its constitution, that could not be done, the next best thing for their lordships to do, would be to try the present experiment. For his own part, he thought it would fail: but still, on account of the great interests involved in it, it was only due to the country to try it. The learned lord then alluded to the projects which had been started for dividing the duties of the lord chancellor. One of them was to prevent the office of lord chancellor, and that of Speaker of the House of Lords, from being ever vested again in the same person; and another was, to abstract from the lord chancellor part of the duty which he was now in the habit of performing. With regard to the first of these projects, he would assert, now at the close of his official life, that which he would not have ventured to assert so positively at its commencement—that he had never known any man in the profession who had not deprecated the separation of the two offices of lord chancellor and Speaker of the House of Lords. Against that project, therefore, he opposed, not merely his own individual opinion, but the collective wisdom of, an acute and intelligent profession. With regard to the second, it became necessary to consider, what part of the business of his court they would take from the individual filling the office of lord chancellor. He believed it was proposed to take away one of these three divisions of its business—cases of lunacy, the appellate jurisdiction, and bankruptcies. He would begin with the last of these. He had understood, that it was the opinion of some distinguished characters now no more, and for whom he felt the most, profound respect, that the bankruptcy business at least ought to be abstracted from the lord chancellor. From that opinion he dissented most widely; and to any attempt to carry such a scheme into execution, he would always say no.—The learned
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lord then stated his reasons for this dissent, and afterwards proceeded to remark upon the appellate jurisdiction; but in sp low a tone of voice as not to be audible below the bar. With regard to lunacy cases, in which there was an appeal from the decision of the lord chancellor to the privy council, and in which he was sorry to say that, of late years, there had been a great increase, he was of opinion, that nobody who was acquainted with the subject would wish to remove them from the jurisdiction to which they belonged at present. These were the principal observations he had to make to their lordships on this question. He hoped that in making them he had not said any thing that was personally offensive to any noble lord. He could assure their lordships that such had not been his intention; but it was impossible for him always to remain silent when he was taunted about his doubts and hesitations.
Earl Grosvenorsaid, he had never intended to impute to the learned lord, want of acquaintance with the law of the land. His great and unrivalled knowledge of it was so universally acknowledged, that it would be absurd in any man to deny it. With regard to the doubts and hesitations of the learned lord, which upon a former occasion the learned lord had admitted with the utmost good humour, he must observe, that he had never doubted that they arose from the learned lord's conscientious anxiety to do equal justice to all parties. If, however, they led to greater delays in a court which was already proverbial for its dilatory proceedings, he could not help considering that to be an unfortunate circumstance, not only for the suitors in it, but for the country at large.
The Earl of Aberdeen, after complimenting the lord chancellor upon his profound knowledge of the law of England and his unwearied patience in administering it, proceeded to vindicate the law of Scotland from the reflections which the learned lord had cast upon it. It was not a rude and barbarous system of law, but a system founded on the wisdom of the most civilized nation of antiquity—a system received by most of the nations of Europe, and one which required quite as much research, talent, arid ingenuity, a that perfection of human reason, the law of England. The number of appeals from Scotland had increased very much of late years; and a circumstance had oc-

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curred within the last year, which: he thought was likely to increase it even still more. In the year 1784, a case had been tried by the Court of Session, and after it had been argued by the most able men at the bar, had been unanimously decided upon by the judges of that day. The judgment was not disturbed until the year 1818. The case was then reheard by the Court of Session, and again the judges came unanimously to the same decision as before. An appeal was presented to this House, and, strange as it might appear, it was however not less true, that by its authority the unanimous decisions of the Court of Session on two different occasions were rescinded. After contending that the knowledge of such an event would encourage those who felt themselves aggrieved by any judgment of the Scotch courts to appeal to their lordships, he proceeded to object to any attempt to separate the office of the Speaker of the House of Lords from that of lord chancellor. He objected to it on two grounds:—first, that it would tend to bring the House into contempt with the public; and second, that it would increase the evil which it was intended to check. The only remedy which suggested itself to him was, to remove the appellate jurisdiction, with respect to Scotland, from their lordships' House altogether. The learned lord seemed to approve of this remedy, if it were not objectionable on the ground of its being contrary to the constitution of the House; and the learned lord had added, that their lordships had no right to disencumber themselves of that duty. Now, he would maintain, that their lordships had the right to remove that duty from themselves if they pleased. The noble lord then went into a series of arguments to prove that this right was in their lordships; and amongst others he urged, that in the act of Union with Scotland, there was no mention whatever of the right of appeal to their lordships' House. That right he, therefore, contended might now be refused without injustice.
Lord Melvillecontended, that the recommendation of their lordships' committee was riot for an alteration or remodelling the constitution of the House, hat which they recommended was quite consistent with the practice of their lordships. The same objection might be made to the appointment of a lord-keeper to preside in the House, or to the temporary presidency of a deputy Speaker in the
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absence of the lord chancellor; which deputy Speaker their lordships knew might be a commoner. The clause which made it compulsory on peers to attend to these appeals was, he thought, a very proper one. By such an arrangement, there would be a certainty of having the business dispatched. The noble lord went on to contend, that the people of Scotland possessed the right of appeal to their lordships' House, and that that right was essentially recognized by the act of Union. The fact was proved by the constant practice of Scotland in sending appeals from that hour up to the present; and the result of the exercise of that right had given great satisfaction to the bend's the bar, and the whole population of Scotland.
Lord Hollandsaid, he did not object to the first part of the recommendation of the committee, but should strongly protest against the resolutions. He did so on two grounds; first, because he understood that by them the noble earl imputed to the constitution of the House a defect which he did not admit; and secondly, that they threw out imputations on the negligence of noble lords, which they did not deserve. Let their lordships look at the manner in which this proposal came recommended to them. The learned lord on the woolsack had said, he did not think this the best plan which could be devised—"but," added the learned lord, "let any noble lord point out a better." This was certainly rather a strange recommendation. A committee of their lordships had been appointed to devise some remedy for the alleged inconvenience, and then, after producing one, admitted not to be the best, they called on their lordships to devise a better. What would any of their lordships think, if, having given his cook orders to provide a dinner, and a bad dish were laid on his table, he was to be asked by the cook whether he himself could provide a better? But this was exactly their lordships' case. The cooks to whom they delegated the power of preparing the dish before them, did not recommend it; but asked their lordships "if they could dress a better." Such as it was, he strongly objected to it. He would not allow that a commoner should preside there, to dictate and administer the law in their lordships' name. But he was told that, according to the constitution of their lordships' House, a commoner might now be placed in the

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same situation. It was but a weak defence of the proposition, to rest it upon an accidental defect in the constitution of the House. It reminded him of the answer given by Mr. Burke to a gentleman who was objecting to the complaints of the Americans—that they had taxation without representation: the gentleman observed, that the Americans had virtual representation, and that in that respect they were not worse circumstanced than the people of many parts of England. "That," said Mr. Burke, "is pointing out to them the shameful parts of your constitution, and telling the to look up to those with respect." It was the same case here. Their lordships were now telling the Scotch people to look up to what was a defect in the constitution of their lordships' House, and be contented with that. The noble lord then went on to contend, that the scotch people had the right of appeal to their lordships, and that it would be an act of injustice to fritter it away, by sending them to a sort of tribunal, which, acting in their lordships' name, could not be said to give its decisions as those of the House of Peers. The people of Scotland were satisfied with the manner in which justice had been heretofore administered to them, but they would not be satisfied with this new species of justice. Would they not justly say, if this innovation upon the constitution of the House of Peers were to be carried into effect—"Why do you give us an inferior article of justice, and keep the best for yourselves? All the appeals from English and Irish courts are to be decided in the usual way by your lordships; but our appeals are to be pronounced upon, and decided, by an inferior tribunal, though acting in your lordships' name?" Such a course, be would contend, would shake the confidence of the people of Scotland in the administration of justice. They had hitherto been satisfied with the decisions in their causes, because they looked upon them as the decisions of the House of Peers; but they would not so respect the decisions by the proposed novel tribunal. When he considered the situation in which their lordships would be placed with respect to the proposed new deputy president in Scotch cases, and the situation of the deputy with respect to them, he was strongly remind of the words of Shakespeare in describing the ne plus altra of human folly, Justice Shallow and
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his assistants—"They, by observing him, do bear themselves like foolish justices; he, by conversing with them, is turned into a justice-like serving-man." He could not consent to the placing on the Journals of their lordships' House, a resolution which would point put a defect in the constitution of their House, which he could not admit. He would contend, that, by the 19th article of the Union, the right of appeal to the House of Peers was admitted to Scotland. r| If their lordships were to have any change he did not see why (though he would not recommend that or any other alteration in their present constitution) they need have a commoner to preside. Why could they not select a competent person from their lordships' house? It would be a degradation to them to look for such a president out of their lordships' own body. For these reasons, he should decidedly oppose the resolution.
The debate was then adjourned till to morrow.