The Lord Chancellorrose to lay a Bill on their Lordships' Table relative to the Appellate Jurisdiction of that House, which he should have presented before, but for the extraordinary pressure of business. The object of the Bill was, to effect an alteration in the judicial system of their Lordships' House. The necessity for such an alteration did not arise from the judicial business being in arrear, for never, at any period, was there so little business in arrear as at present. He had offered every facility to all parties to hear their causes, and there was not then a single Irish or Scotch appeal in arrear, which was entered before the month of February last. Now, he had known the business of seven, eight, or nine Sessions to be in arrear. He had sat sixty days this Session, and had heard about sixty causes. Some of the English and Scotch Appeals were of very great importance, and involved points of great difficulty. One of them had occupied three or four days in the hearing. He 1256 was glad to say, that he had finished the case of "Lewes and Morgan," a very old case, and one which had been before their Lordships three or four times. It was not, therefore, on account of any arrear in that, nor was it on account of any fault on the part of the Court of Chancery, that an alteration was necessary. With respect to the Court of Chancery, scarcely any causes remained undecided there. He had sat for the last five weeks, indeed he might say for the last six or eight weeks, and there remained only six cases entered before the month of June, and seven or eight entered since the month of June. The necessity for an alteration rested, then, on a different foundation. The manner in which appeals were heard involved a very serious grievance, both as regarded the judicial character of their Lordships' House, and the interests of the suitors. When the first hearing of an appeal came on, two noble Lords sat and assisted at the opening; two others attended the hearing on the other side. On the third day two noble Lords, who had not been present before, came down and heard the reply. The cause was then set down for judgment; and in the fourth instance two noble Lords assisted at that judgment who had not heard the beginning, the middle, nor the end of the proceeding. Such a system was not in accordance with common decency either to noble Lords who were thus called in rotation to assist in appeal cases or to the suitors whose interests were to be considered, or to the House itself. The anomaly of appealing to the Chancellor in that House, with reference to causes which he had previously decided elsewhere, had so often been stated on various occasions that he need not go into great length on that point. He had now been sitting for the greatest part of this Session on English and Irish appeals, and he had been obliged to postpone for two Sessions several of those causes, because they were appeals from his own judgment. He was anxious to obtain the assistance of Lord Plunkett or the Lord Chief Baron; but as he could not procure their valuable aid, he was compelled to hear those appeals himself. There were fourteen or fifteen appeals in deciding which he wished to have that assistance; and of these ten or eleven were appeals from his own judgments. Now, he had not the least degree of bias in favour of any judgment that 1257 might have been given by himself; and if proper cause were shown, he would be ready to alter it. His affirming a judgment of his own in that House did not make the point right, if the decision were originally wrong. Professional men would see, and would mark the error. But what he looked to was this,—that by affirming a judgment he gave it the force of law, and nothing but an Act of Parliament could alter it. That being the case, he would ask, whether it was proper that an appeal should lie to any one single Judge? Whether, for the purpose of insuring a right decision, of commanding confidence in that decision, with reference to the suitor, the public, and the profession at large, and of obtaining uniformity in decision,—whether, for the attainment of these great purposes, it was not absolutely necessary that a Court of Appeal, consisting of more persons than one, should be established? The law assumed that such a court did exist, because it made all their Lordships hereditary Judges of Appeal. In common law cases they called in the Judges; but in equity cases, English, Scotch, and Irish, this was not the practice. The defect of the system might be proved by a single instance. Suppose a decision of the thirteen Judges of Scotland appealed against. It was taken from those persons who understood the Scotch law, and was to be adjudicated by a single individual, who perhaps was as ignorant of the law of Scotland as of the law of Japan. Was it likely that his unassisted decision could give satisfaction? There was much truth in the homely proverb, "Many heads are better than one." This was clearly borne out by the entire success of the judicial committee of the Privy Council. The second case tried before them would have been decided the other way if any one of those who formed the Committee had considered it alone. But the Judges laid their five heads together, and the consequence was, a unanimous judgment directly contrary to that which any one of them unassisted would have pronounced. These were his reasons for desiring some modification of the existing law. He would now allude to the difficulties which he had to overcome in effecting any such modifications. The first was the repugnance which he had naturally felt to alter the jurisdiction of their Lordships, and the next was the small number of Judges from whom he 1258 could select a certain number to hear appeals; for he held it to be indispensable that appeals should be decided by Judges taken from other Courts, and not by Judges appointed for the express purpose of deciding such cases, and forming a separate and exclusive tribunal. The example of France, where there were two Courts exclusively for hearing of appeals—namely, the Cour Royal and the Cour de Cassation—proved nothing, for there was such a vast number of inferior Judges in France (fourteen or fifteen hundred), and they were of such an inferior class that it would be most injudicious to call upon them to sit in appeal. He thought that Judges who were only Judges of Appeal would not be fit for anything. What would the Lord Chancellor be worth as a Judge, if he sat forty or fifty days in the year to hear appeals only, without being accustomed to the forensic strepitus, as it were, and without having heard the business done in the first instance, which afterwards became the subject of appeal? There never would be a Court of Appeal worth anything, unless the Judges composing it sat also in the Courts below. On the one hand, it was necessary that the Judges of the Court of Appeal should not be those whose decision was appealed against; and on the other, that they should be accustomed to preside in the Courts below. There was but one middle course to take, and that was judiciously to compose a due admixture of the various judges with those whose decisions were appealed against,—thus proceeding on the principle of analogy to the Courts of common law. When the Court of King's Bench, or the Court of Exchequer, or the Court of Common Pleas went wrong, an appeal was made to the other common law Judges; and so when all these Judges went wrong, an appeal took place to the House of Lords, which sent for the Judges; who intermixed with the equity Judges, and applied their minds to the subject. It was upon this principle that the judicial committee of the Privy council was constructed, and upon the same principle he would proceed in the change he was about to propose; and as in the former case the Royal prerogative was left untouched, so in the latter the jurisdiction of the House of Lords would remain unimpaired. The judicial Committee of the Privy Council consisted of Judges, selected by rotation, 1259 of whom there were never less than four present. They decided the appeal, and reported their decision to the Privy Council, where judgment was given by the King in Council precisely as before. This, he repeated, was the principle upon which his Bill proceeded. It would give their Lordships the power of calling for the services of the Judges in equity, and of directing any case in which an appeal might be resorted to, to be tried by a judicial Committee to be appointed under the Bill. This judicial Committee would pronounce its judgment ill open court, which would be reported to the House, and then the House would pronounce its judgment in open court. The rights and dignity of their Lordships' House would be preserved inviolate as heretofore. He proposed that the Judicial Committee should always have presiding over it either the Lord Chancellor for the time being, or the Chief Justice of the King's Bench; or a new officer, a Vice-President, without salary, to be appointed by the Crown, and to hold rank next to the Privy Seal, and who must previously have filled the office of Lord Chancellor, or Lord Chief Justice of the King's Bench, or of the Common Pleas. The Vice-President, however, would only be called upon to act when the Lord Chancellor, or the Chief Justice of the King's Bench might be prevented from presiding in consequence of being engaged elsewhere. Thus, then, the judicial Committee of the House of Lords would consist of four Judges, who would be presided over by the actual or late Lord Chancellor, or the actual or late Chief Justice of the King's Bench, or of the Common Pleas. He wished it to be observed, that no part of their Lordships' jurisdiction would be taken away by the change which he proposed. He should, indeed, be sorry to see any measure adopted which could in the slightest degree operate to the disparagement of that House. He was always ready to bear testimony to the value of the House of Lords, which he considered an integral and necessary part of the constitution. No impartial man who had watched the proceedings of the last two years could have failed to perceive that if there had been no House of Lords, the House of Commons must have stopped its legislation, or if it had worked on, it would have been covered with blunders and absurdities. He spoke with all due respect for the House of Commons, for 1260 which he felt veneration. It was not their fault that they committed errors, they must of necessity do so. With the competition which prevailed amongst 658 men, who were constantly striving one with another, it was impossible that the details of measures could receive the same calm and deliberate attention which they obtained in their Lordships' House, where none of those distractions prevailed. The noble and learned Lord then adverted to what he called the notable clause in the Justice of the Peace Bill, which the Commons insisted upon retaining, as a proof of absurd legislation. Their Lordships had improved that and several other measures, and if when they had the knife in their hands cutting away the rotten parts, they should sometimes happen to go too far and cut off the head, of which there had been a recent example, allowance should be made for them. If a surgeon should cut too far, or not in the right direction, who would be so ridiculous as on that account to propose to blunt his knife, and prevent him from operating at all? Before he sat down he wished to state his reason for not proceeding with his Bill for separating the judicial and political functions of the Lord Chancellor. When he came to consider the subject at Easter, he found that he had no arrears of judicial business, and therefore he felt that with respect to that Bill, he had no ground to stand upon.
§ The Bill laid upon the Table, read a first time, and ordered to be printed.