HL Deb 05 July 1832 vol 14 cc78-82
The Lord Chancellor

said, he rose to present to their Lordships a Bill of which he had given notice, relative to the Appellate Jurisdiction of the Ecclesiastical Courts. It was a measure founded upon, and in accordance with, the recommendation of those learned and most respectable individuals, the Ecclesiastical Commissioners, and, as he supposed that the introduction of it would meet with no opposition, he should not have to trespass at any length on their Lordships' attention. However, as the measure was a very important one, and as it went to make a very important change in the law, it was fit that he should state the nature of it, and the grounds upon which it was proposed to be I made. Their Lordships were aware, that from all the Ecclesiastical Courts in this country, an appeal lay to the High Court of Delegates; and even the decision of that Court of Appeal was not final, for the party against whom it was made could have a further appeal to the Court of Review, by an application to the Crown for the granting of such a species of appeal as a special favour. The party, in the first instance, against whom sentence was pronounced in any of the Ecclesiastical Courts, had the right of appeal to the High Court of Delegates, which Court was appointed by a commission from the Crown, authorising a certain number of persons, called "delegates," to investigate and decide upon the matter in question. This appeal was a matter of right, and existed by statute-right since the 25th of Henry 8th. The Crown might issue this commission to whatever persons it pleased, but it had been long the practice to issue that commission to a certain description of persons. Those persons were generally three or four of the Judges in the Courts of Common Law, and three, four, or five Civilians. The construction of that Court was anything but well adapted for the performance of the important duties that were assigned to it. It was first required by the rules of the Court, that, in order to make its sentence valid, one of the common law Judges should be a consenting party to it. In the second place, when an equality of decision occurred, (an occurrence by no means unfrequent in this Court, where there were often but six of the Judges in attendance), there was no sentence. In the third place, the common law Judges, who constituted a part of this Court, were obliged, in forming their judgment in the case referred to them, to rely on the assistance of the advocates of the civil law Courts, who had been appointed in the same commission, and who were, of course, considered to be more conversant with those principles of law on which the case was to be decided than they could be. Now it so happened, that the Civilians appointed on those commissions were not the best qualified to render that assistance to the common law Judges, or to bear a part in the decisions of this Court, for they were practising advocates in the Courts below, before those very Judges from whose sentence the appeal in question was made. This was in itself manifestly a great evil, and a practice that was highly objectionable; for, however learned those gentlemen might be, and however honourable and equitable their decisions might be, no men should be placed in a situation like this, one day acting as practising barristers in the Court below, and the very next day called from that Bar to decide upon points, exactly similar to those which they had been arguing before the Judges in that Court from whose decision the appeal had been made. Another objectionable feature in the constitution of this Court was, that in the selection of the Civilians to sit upon it, they were extremely limited in their choice; they could not, of course, select the Judges; they could only choose from amongst the advocates in those Courts which were not crowded with barristers like the Courts of Westminster Hall; and as most, if not all, of the most eminent of those advocates had been employed in the cause in the Court below, they of course could not be appointed to decide upon an appeal in a cause in which they had been engaged as counsel. The natural tendency of such a state of things was, that this appeal from the Court below was sent for decision to Judges, composed, not even of the leading barristers in that inferior Court, but of the junior barristers, who had not as yet obtained any business, and of other barristers who, from accidental circumstances or otherwise, had got no practice at all. The result was, that frequently barristers of not more than one year and a half's standing were called on to preside in this Court of Appeal as Judges. The constitution of this Court had been long complained of, and so early as the reign of Charles 2nd petitions had been presented to the Crown, praying for a revision of the appellate jurisdiction of the Ecclesiastical Courts. There was no direct formal appeal from the sentence of the High Court of Delegates, but power was given to the party against whom sentence was pronounced, to petition the Crown for the appointment of a Court of Review, and that petition was usually referred by the Crown to the Lord Chancellor, who advised the Crown as to whether such a commission should issue or not. If the Lord Chancellor advised the Crown in the affirmative, a Commission of Review was then appointed to examine into, and decide upon the sentence pronounced by the High Court of Delegates. That Court was a much more extended one than the Court of Delegates. Many Lords, spiritual and temporal, were appointed upon it, with several of the Judges, and its decision was final on the subject. It seemed, for these reasons, expedient to the Commissioners of Ecclesiastical Inquiry to recommend, and he fully concurred in the recommendation, that the High Court of Delegates should be abolished: one grievous hardship arose from the inability of that Court to impose costs on the party who appealed to it, and against whose appeal it might have decided, for in that way serious expenses were entailed on the party in whose favour the Court below had rightly decided, and against which decision a pauper, perhaps, had thought fit to appeal. The Bill, therefore, which he now presented to their Lordships, and the first reading of which he should conclude by moving, went to abolish the appellate jurisdiction of the High Court of Delegates, and to transfer it to the Privy Council. It would, of course, be necessary that they should have his Majesty's pleasure as to the transferring of this appellate jurisdiction to the Court of Privy Council, and it would be also proper to provide, that that Court should sit at regular seasons for the despatch of the business which would thus come before it. It would be hero naturally asked by their Lordships, what additional burthen would this throw upon the Privy Council? It appeared from an average of the last thirty years, that the number of appeals to the High Court of Delegates had been only three or four annually; but it was certain, at the same time, that those cases occupied considerably more time than cases in other courts of law, and it was also certain, that the number of appeal cases at present averaged from eight to ten annually. He apprehended that the number of appeals to the Privy Council would be even more than that, and the question was, what step should be taken to enable that Court to discharge more readily and easily its present high functions, as well as to get through the additional business which this measure would throw upon it. If that Court sat at regular intervals, and if it had a regular Bar practising before it, it could be denied by no one that there would be a greater number of appeals from the colonies than were made to it, constituted as it now was. It was, therefore, intended, that should this Bill pass, some arrangement should be made by the exercise of the Prerogative of the Crown, to enable that Court to discharge its functions more readily and speedily, the great number of retired Judges at present, who were all members of that Court, would considerably facilitate the discharge of the business which might be thus brought before the Privy Council—The noble and learned Lord concluded by presenting the Bill, which was then read a first time.

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