Lords Sitting of 11 April 1842

Preamble
MINUTES.] BILLS. Private.—1a. Benecke's Naturalization.
2a. Severn Navigation.
Reported.—Windsor Bridge.
3a. and passed:—Bristol Boundary.
PETITIONS PRESENTED. From Sapcote, against any further Grant to Maynooth College.—From Truro, for Abolition of Church Rates.—From Bandon, that Cork may be the Packet Station between England and the South of Ireland.—From Kilbrogan, and Bandon, for the Encouragement of Schools in connexion with the Church Education Society (Ireland).—From Millers of Clonakilty, against the Importation of Foreign Flour into Ire land.—From Shouldham, Thorpe, Foulden, Gooderstone, Oxborough, Barton, Bendish, Swanton, Morley, Hoe, Worthing, Elsing, Western Norfolk, West Raynham, and a great many other places, against the proposed Scale of Corn Duties.—From the Grand Jury of Galway, for Alteration of the Grand Jury Law, and for Protection to the Agriculturists.—From Solicitors in Dundee. that Solicitors, Attorneys, Proctors, and Writers, may be Exempt from the Income-tax.—From Prisoners in the Queen's Bench Prison, for Alteration of the Law of Debtor and Creditor, and that the benefit of Term Day Rules may be allowed, and to be heard by Counsel in support of the Petition.

TAX ON ATTORNIES.
Lord Broughampresented a petition from attornies of Dundee, complaining that they were subjected to heavy taxes from which other classes of the community were exempted. They had to pay in the first instance very heavy stamp duties on their articles of indenture, and

175
they were also obliged to pay an annual sum on taking out their licence. These, they said, operated like an Income-tax on them, and they therefore prayed that their Lordships would not sanction any bill on the subject of taxation which did not make some provision for having their case duly considered. The noble and learned Lord said, that he concurred in that part of the prayer of the petitioners which sought relief from unequal taxation. The view which led to laying a tax on one portion of the community from which all others were exempt was manifestly unsound; but, nevertheless, it seemed to have found favour in the eyes of the Legislature when it was first proposed. It was somewhere about forty years ago when Mr. Pitt, adverting to his intention of taxing the class of professional men to which the petitioners belonged, said, he bad a proposition to make which he was sure would meet with the approbation of men of all parties. It was a plan to lay a tax on attornies. The announcement was received with loud cheers, and eventually the measure was passed into a law. He (Lord Brougham), however, did not think it was a just one, and he hoped the case of the petitioners would be considered.
Petition laid on the Table.

COURT OF APPEAL.
Lord Campbell: My Lords, I rise to move the second reading of the bills which I have had the honour to lay upon your Table to improve the administration of justice in this country—with the hope that further consideration may have removed the objections stated to them when they were first brought forward. My object is to establish this House as the sole court of appeal in the last resort for the whole empire,—with power to sit for judicial business during the whole judicial year,— and that there shall be a permanent judge to preside in the Court of Chancery. I think no one will deny, that the object is desirable; and the only question is, whether it be attainable. I allow, that if the present system practically works well, we are not, with a view to theoretical perfection, to resort to "the lottery of legislation." I seek to remedy practical grievances, and to guard against evils which are palpably gathering around you. The same individual cannot much longer be permitted to preside in this House and in the Court of Chancery. Will my noble and learned Friend on the Woolsack deny, that the
176
most serious obstruction to the due administration of justice arises from this combination of incompatible duties in his person? Are not the suitors in the Court of Chancery thereby aggrieved? For three days in the week while Parliament is sitting is he withdrawn entirely from that court—whereby the business is most seriously interrupted, and he is deprived of the assistance of a separate bar. Thus, for many years, an original cause has seldom been heard before the Lord Chancellor, and in the hearing of appeals large arrears have sometimes accumulated. But from the change that has lately been introduced by the appointment of two additional Vice-Chancellors, unless the Chief Judge in the Court of Chancery is permitted to devote the whole of his time to it, the appeals now coming before him cannot possibly be disposed of. I understand that there are already three times as many appeals standing to be heard as there were this time twelvemonth, and that in the course of a few months the number will be greatly increased. There are now twice as many courts to be appealed from to the Chief Judge in Chancery, and must you not increase his time for hearing appeals which before was barely sufficient? These evils will be perpetually felt under the present system. But how are they aggravated upon a change of Government? The great officer who presides here must be changed; but where is the necessity for a change in the Chief Judge in Chancery more than in the King's Bench, Common Pleas, or Exchequer—except that by an antiquated usage originating from accident, the Chief Judge of the Court of Chancery occupies the Woolsack, having earned the confidence of the public. From his learning, ability, zeal, and experience,—when still in the vigour of his intellect—he is laid aside, to make room for one who may be in all respects his inferior in the qualities of a judge. Of course, my Lords, I mean no reflection on my noble and learned Friend now on the Woolsack. With reference to the recent change I am willing to believe, that although the sun set, no darkness followed. But, supposing the succeeding judge to be quite equal to his predecessor, see what mischiefs are necessarily produced. There may be many cases which have been heard, and which stand for judgment, when there is a sudden transfer of the Great Seal. The hearing begins again before the new Chancellor, and he, too, may be deprived of

177
his office before judgment is pronounced. In Lady Hewley's case we have an instance of this occurring three times over. Upon a change there is likewise a strong temptation to resort to petitions for re-hearings—in the hope of creating a difference of opinion in the new Chancellor. But a certain and constant evil arising from the Chief Judge in Chancery presiding here is, that thereby the suitor is deprived of any efficient appeal. It is very well to talk of the candour and impartiality with which the Chancellor, sitting in the House of Lords, is ready to review his decrees in the Court of Chancery, but the public consider that the right of appeal is a mockery;—which is shewn by their hardly ever resorting to it. By returns upon the Table, it appears, that during a given time, I think four years, there were only six appeals from the Court of Chancery, while there were fourteen from the Equity side of the Exchequer; and if the appeals were in proportion to the number of causes decided, there being 14 from the Equity side of the Exchequer, there ought to have been 120 from the Court of Chancery. This difference is to be explained not by a disproportionate confidence in the soundness of the decision, but in a conviction that an appeal "ab quodam ad quendam" is different from an appeal "ab eodem ad eundem." What is the remedy for all these evils? A bill for appointing a permanent judge to preside in the Court of Chancery,— leaving the Lord Chancellor to his duties in this House where there is ample occupation for him. Formerly the appellate business of this House could easily be got through in two or three hours a day on distant days. It is now necessary to sit during the session four days a week and six hours a day. By and by I trust you will sit in your judicial capacity daily during the Session, and at other times when Parliament is prorogued, this House again becoming, as it was in ancient times, the only tribunal of appeal in the last resort from all courts established within the dominions of the crown. This improvement is more particularly required with a view to the administration of justice in Ireland. There by statutes 28 Geo. 3rd, c. 6, 22 and 23 Geo. 3rd, c. 14, and 40 Geo. 3rd, c. 38, the appeal from the Admiralty Court and from all the ecclesiastical courts is to ft court of delegates appointed for each particular cause and which consists of three common-law Judges and two Masters in
178
Chancery, there not being there any separate order of civilians. The decision of these delegates is binding and conclusive. Mark the inconvenience. One set of delegates may differ from another, and, supposing them all to take the same view of the law of Ireland but one different from your Lordships, what is to be done? Is this a visionary danger? May it not overtake you during the present Session of Parliament if a timely remedy is not provided? A marriage in Ireland by a Presbyterian pastor between a member of the Church of England and a Dissenter has been held to be void by the Ecclesiastical Court of Armagh and by a majority of the common-law Judges. The opinion of the common-law Judges is to be immediately reviewed by your Lordships on a special verdict to be removed here by writ of error. From the Ecclesiastical Court no appeal or writ of error lies to this House. Suppose your Lordships should hold the marriage to be valid, the wife may still be treated in the Ecclesiastical Court as a concubine and the children as bastards. There is no mode in which they could compel administration of the effects of a deceased husband or father dying intestate, or avail themselves of the opinion of this House upon their status. The Ecclesiastical Courts and the delegates in Ireland may say, that the marriage is good for certain purposes as your Lord ships decide, but that they alone are to determine whether it is void or valid, according to the canons of the church of which they are the supreme and final Judges. A great difficulty has arisen since the Catholic Relief Bill in even prosecuting an appeal in Ireland to the delegates. No Roman Catholic may sit as a delegate, and yet a Roman Catholic may be a common-law Judge. It has recently happened that in a commission of delegates was included a Judge of the Common Pleas, of distinguished learning and ability, but of the Roman Catholic religion, and on account of his disqualification the appeal could not he heard. The only remedy is to give the appeal to this House. It could not conveniently lie to the Irish Privy Counsel, and the pride of Ireland would naturally and properly be offended at a proposal to give the appeal to the Privy Council in England, although, by a strange oversight of the patriots in 1782, there is still an appeal from the Irish Chancellor in lunacy to the English Privy Council. But if all the courts of final appeal in the empire could be reduced to two,

179
this House and the judicial committee of the Privy Council, the system would be imperfect, and a consolidation of the two would be required. I will not repeat what I before urged of the imperfections of the latter tribunal in its having no fixed head —no judges who are bound to attend—and no certain times of sitting. Suppose, that these could be cured, how are you ever to get rid of the danger of contrariety of decision? What is the great object of a court of appeal in the last resort? To obtain uniformity of decision, and that the law may be authoritatively promulgated,— to escape that miserable servitude where law is vague or unknown. To have two final courts of appeal of equal authority not assigned to different branches of the law, but before both of which the very same questions of law may be brought is an absurdity. Nay the very same question, the same state of facts may be brought before both courts, and decided differently. The validity of a marriage may be tried in the ecclesiastical courts in a suit of jactitation of marriage, which would ultimately be decided by the judicial committee, and the validity of the same marriage might be tried in an ejectment in a court of common law, and brought upon a special verdict, to be decided by this House. Each would only consider the decision of the other to be treated with respect, and to be adopted if approved of, but to be overruled if thought erroneous. A man may thus be sentenced for bigamy, in respect of marrying a woman whom he may be ordered by the spiritual count to cherish as his wife, at bed and board, under pain of excommunication. But the inconvenience is practically experienced at this moment. Two or three years ago there was a case decided by the judicial committee, Young v. Bank of Bengal, an appeal from the Supreme Court at Calcutta, upon the important subject of mutual credit. My noble and learned Friend sitting near me (Lord Brougham), and his brother members of the committee felt themselves called upon to disregard a train of well considered determinations of the courts of Westminster Hall, and to reverse the Indian judgment founded on these determinations. I do not presume to say this decision was wrong, although it was against my strenuous argument as counsel, and I should have been glad to bring it before this House. Final between the parties, it is by no means considered as finally settling the law. The very same ques
180
tion has recently arisen before Vice-Chancellor Knight Bruce, and he has sent it for the opinion of the Court of Common Pleas. It may very likely come before your Lord ships, and you may be pleased to adhere to the old cases upset by the Judicial Committee, who would no doubt support their own decision. A court of dernier resort must at all events be consistent with itself. How are mercantile transactions in the mean time to be regulated. "Under which king, Bezonian?" Surely there cannot be a greater evil than the clashing of jurisdictions in the same state. The public tranquillity of this metropolis was lately endangered by the collision between the House of Commons and the Court of King's Bench on the subject of privilege, and I look with dismay to the present distracted state of my native country, arising from the conflict between the civil and ecclesiastical courts. In both these, the constitution would probably be found to have provided a remedy, and the supremacy of one of the struggling tribunals established by process of law. But it is allowed, that the House of Lords and the Judicial Committee, are perfectly co-equal as courts of appeal, and neither could conscientiously adopt the law laid down by the other, unless it accords with the private opinion of those who decide. There would be some practical safety if the Members who concur in the judgments of the two tribunals were the same; but this is by no means the case; there is no necessity for any Peer being present in the Judicial Committee; and it almost invariably happens, that a majority of the Court are Commoners; the Judge of the Admiralty, and the Judge of the Prerogative Court, not even being now summoned to this House as assistants, although I mean that they should be summoned in future along with the Vice-Chancellors. I trust it is unnecessary to dwell on the minor inconveniences which duplicity of courts of dernier resort occasions, such as the embarrassment necessarily occasioned by their both sitting at the same time, the impossibility of having a good bar for either, and the additional expense which is thrown upon the suitor. Prima facie, the unity I propose is preferable. What then is the objection? I have heard none seriously brought forward except novelty, and when this is examined, it will be found wholly unfounded in fact. 1 shall show, that this measure is only a restoration to your Lordships of that jurisdiction

181
which was exercised by your ancestors. When I had last the honour to address your Lordships on this subject, I ventured to intimate an opinion, that anciently all appeals were to the Sovereign in Parliament, and that the separation of the Privy Council from this House, as an independent Court of Appeal, was a deviation from the original juridical constitution of this country, as settled by its great founder, King Edward 1st. This opinion, my Lords, has since been rendered quite clear and certain by the researches of Mr. John M'Queen, a gentleman of great legal and antiquarian knowledge now employed in preparing for the press a publication respecting the history and proceedings of this House which I am persuaded will be found of great use to the public. He has found, that originally Privy Councillors were summoned to this House at the commencement of every Parliament as well as the judges. They formed the ordinary council, which was a part of the Common, or Great Council where the king presided. All writs of error being to Parliament, they were sometimes referred by the House of Lords to the Privy Councillors, who reported their opinion—upon which judgment was given by the House of Lords. For this there is vouched, as an illustration, a remarkable record in the Prior of Montague's case, which occurred in the time of Richard 2nd, and shows a judgment given by the House of Lords according to the then established course after such a reference. Parliament, in those times, met at least once a year, and often three times — at the great festivals of Christmas, Easter, and Pentecost. Triers of petitions were appointed, not only for England, but for Guernsey, and Jersey, and I believe this form is still observed. [Lord Redesdale: Triers are still appointed for Normanby, Gascony, and Acquitaine.] A noble Lord, well versed in all your proceedings, informs you, that you still exercise a shadowy jurisdiction over the continental states, formerly attached to the English monarchy. But in ancient times, this was a real jurisdiction. During the short period that Scotland, from the treachery of Edward 1st, was in a state of feudal subjection to England, there were not only triers appointed for Scotland, but Balliol and Bruce were cited to appear as parties to appeals from Scotland at the bar of this House. The Privy Council was thus incorporated with the Lords during the
182
Plantagenet dynasty. But on the accession of the House of Tudor, when the attempt was made to rule by prerogative and Parliament was only rarely assembled, and that for the purpose of voting supplies to the Crown, the Privy Council assumed a judicial power independent of this House. Then sprung up the Star Chamber, a Committee of the Privy Council. But it is not till the end of the 17th century that there were appeals from Guernsey, and Jersey, to the King in Council, instead of to the King in Parliament. After a diligent search in the records of these islands, and of the Privy Council, the first instance of an appeal from 'the Channel Islands, heard by the Privy Council under the direct reference of the Sovereign, was in the year 1572. But a record has been found, showing that in the reign of Edward 2nd, the course was, that there was first an appeal from the courts of the island, to commissioners appointed by the Crown, and from these commissioners there lay a writ of error in Parliament, sued out in Chancery as from the courts of Westminster-Hall. The opinion propounded by General Pownal, and pretty generally followed, turns out to be quite erroneous, that the appeal always was from Guernsey and Jersey to the King in Council, as it was supposed to have been in Normandy to the Duke. The mode of appealing from Ireland having been fixed in very early times to be to this House, it so continued till the year 1782. Therefore, according to analogy, the appeal from the American colonies ought to have been to this House—that is to say, to the King in Parliament, and not to the King in Council. The Channel Islands will rejoice in again coming under your jurisdiction, and it will give satisfaction beyond the Atlantic and Pacific, if you should appoint triers of petitions for America and Australia. Some persons wholly ignorant of the constitutional history of the country, have suggested that it would be unconstitutional to bring the colonial appeals from the Privy Council before his Majesty in Parliament, but this change would not only practically be a great advantage to the colonies in providing them with a better tribunal, but in truth is entirely in accordance with ancient precedent. allow, that the independent jurisdiction of the Privy Council over colonial appeals, although originally founded on usurpation is not to be questioned, and I only take this glance at the olden time to answer those who would oppose modern improve-

183
ment on the ground that we should respect the wisdom of our ancestors. It happens upon this as it has done on other occasions, that the practices complained of and defended are a departure from our early institutions, and that those who are denounced as destructives are not only reformers, but restorers of our early institutions. Why then should you not agree to this great improvement? There will be no lowering of your dignity in deciding the appeals from the Admiralty, Ecclesiastical, and Colonial courts. The questions thus coming before you will be the most important which can come before any human tribunal—questions on the law of nations—questions respecting the rights of peace and war—questions on the canon and statute law respecting marriage and legitimacy—and such questions on the colonial law as that now depending on an appeal from Newfoundland, whether a House of Assembly established by the Crown to make laws for the colony in conjuncture with a Legislative Council and the governor has the privilege belonging to the House of Commons in the mother country of imprisoning any one of the Queen's subjects for whatever it may vote a contempt. It has been said this is not the time to make further changes in the Court of Chancery, but I think I have shown that the changes you have already made render others inevitable, and that you cannot stop in your present position without manifest injustice to the suitors and to the public. It is said, time would be wanting for the House of Lords to get through the new business to be brought before you. The remedy is in my bill, permitting the House under the sanction of the Crown to sit for the despatch of judicial business after a prorogation. Your two capacities, political and judicial, are entirely distinct. In your political capacity you can only act concurrently with the House of Commons in full Parliament. In your judicial capacity you are entirely disconnected from the House of Commons, and you are only the highest court of justice in the kingdom. This Court might have been constituted of members entirely different from the House of Lords—as the Supreme Court in America is composed of members different from the Senate and the House of Representatives. It was formerly thought that the courts at Westminster could only sit in Term time. They now sit in vacation as often and as long as the exigencies of business require. Why should you not follow
184
their example? If it be less alarming to any noble Lords, you may according to ancient usage appoint a committee to sit for the hearing of appeals during the recess, and adopt their report when Parliament is re-assembled. As to the appointment of a permanent judge in the Court of Chancery, the urgency is so great and the advantages so obvious, that the measure has been recommended by every one whose opinion deserves to be regarded upon such a subject, and it has been only delayed from the difficulty of providing at the same time a high judicial officer, who with constant judicial employment may preside on the Woolsack in this House, and being a member of the Cabinet may advise the existing Government on all legal and constitutional questions. I trust, therefore, that all the three bills will receive the sanction of your Lordships, unless my noble and learned Friend shall show you that the existing system is practically perfect, or that my measure would be no remedy for the defects to which it is subject. With these observations I now move your Lordships to give a second reading to the Bill for transferring the Admiralty, Ecclesiastical and Colonial appeals from the Judicial Committee of the Privy Council to this House.
The Lord Chancellorsaid, that this question had been so much discussed upon a former occasion, when his noble Friend moved for leave to introduce this bill, that he did not think it would be necessary for him to engross much of their Lordships" time in canvassing the points to which his noble and learned Friend had referred. Indeed, he hardly knew that he ought to be heard at all; at all events, he did not think he should obtrude himself on an occasion of this kind, because one of the objects of the bill was to shut the doors of the Court of Chancery against the Chancellor for the time being. Not only was he no longer to preside as Chancellor, but, according to the provisions of his noble Friend's bill, he would not even be eligible to that high judicial office which it was the object of his noble Friend to create. Her Majesty had no power, according to the provisions of his noble and learned Friend's bill, to place in that situation the person holding the great seal for the time being. But not only so, a learned and noble Friend of his (Lord Cottenham), who sat near him, whose experience in courts of equity, whose judicial talents and attainments, were the

185
subject—the just subject—of his noble and learned Friend's eulogium, would, as this bill was constructed, be also excluded from holding that office. Still further, another noble and learned Friend of his (Lord Brougham), who formerly held the great seal, and who, by unabated diligence, energy, and zeal, contrived, with the aid of the Master of the Rolls and Vice-Chancellor for the time being, to get rid of that mass of arrears under which the Court of Chancery so long groaned—even that noble and learned Lord, according to the provisions of this bill, was not competent to fill the high official situation created by this bill. To show the impartiality of his noble and learned Friend, he had also excluded himself, and if he had any desire hereafter to preside in courts of equity, he had no other course to pursue but to retrace his steps across the channel, and resume his situation in that court in which he had before administered equity in that part of the United Kingdom. Although his noble and learned Friend had divided his measure into three bills, they still constituted but one individual measure. The first object was, according to the bill now proposed to be read a second time, to abolish the Judicial Committee of the Privy Council. In order to this, it was necessary that provision should be made for hearing the business which was now disposed of by that body; his noble and learned Friend transferred that business to their Lordships' House, and endeavoured to make provision for the purpose of enabling them to dispose of it. But then another step was necessary to enable him to complete his plan; if by this measure the Lord Chancellor would be confined continually to the House of Lords, it was necessary to make some provisions for remodelling the Court of Chancery. So that when the measure was considered, although divided into three bills, it was clearly, distinctly, and properly, as the noble Lord himself had stated, substantially one. Now, with respect to the first bill, the ground-work of the whole, his noble and learned Friend proposed by this bill to abolish the Judicial Committee of the Privy Council. It was now about nine years since their Lordships had passed a bill for the purpose of extending the jurisdiction of that tribunal, enlarging its powers, and adding to its judicial strength. That bill was much considered at the time; it passed their Lordships' House without the slightest opposition; it met with no opposition in
186
the other House of Parliament; it gave universal satisfaction. Why then, after having taken so much pains to build up a tribunal of this description, to extend its jurisdiction, and complete its force—why were they now called on to retrace their steps, and, after nine years' trial, to abolish that very tribunal which they had so contrived? Was it by reason of any defects in the constitution of that tribunal? Was it because that tribunal had not faithfully and satisfactorily performed its functions? No such reason could be assigned—no such reason was attempted to be assigned. Let their Lordships mark the history of that tribunal, and see what it had effected. That was the mode by which to try the practical advantage of his noble and learned Friend's measure. It was unnecessary to go into remote antiquity, and see what had been the original constitution of that House. The question was, what had been the practical working and effect of the present system, and by that their Lordships would decide. A very short time after the bill passed, a return was made to Parliament as to the state of business before the Privy Council. There were at that time depending 167 appeals, independently of those from the native courts in the East Indies. Unless they saw the papers accompanying an appeal, their Lordships could not be aware of the nature and character of such proceedings, or of the labour which was necessary to do justice in each case. It would be a satisfaction to their Lordships, however, to know that the whole of the arrear which then existed, and had existed for a long time, had been entirely swept away; there was actually at the present moment no arrear, and, as a judicial body, that tribunal kept down all arrear, and disposed of cases as soon as they were ready to be heard. But then it might be said that it was a very easy thing to get rid of arrears by hasty and rash decisions. Had any thing of that kind been suggested on the present occasion? Quite the reverse. A simple reference to the names of the Judges at present constituting that court would alone be a sufficient reply to such a suggestion. He would take on himself to say, that there was no court in this empire which applied itself more carefully, with more patience and more diligence, to the hearing and deciding of cases, than the tribunal which his noble and learned Friend was about to condemn. He might mention one circumstance which

187
alone would be decisive of the character of this tribunal, and the care and pains it took in its judicial decisions. In every case of importance the judgment was written—it was not a hasty judgment, time was taken to consider, and the judgment, when delivered, was written, insuring accuracy, diligence, attention, circumspection. Then he might also appeal to those very reports to which his noble and learned Friend had referred in confirmation of the diligence, the legal ability, the sound judgment manifested in the decisions of that tribunal. This was the tribunal which his noble and learned Friend, by his bill, was in the first instance desirous of inducing their Lordships to abolish by appealing to some ancient times and circumstances, when it was supposed, perhaps not incorrectly, that this tribunal formed part of their Lordships' House. He did not think their Lordships would be disposed to adopt such a suggestion; and they must always remember that the abolition of this tribunal was the very basis of his noble and learned Friend's whole system. Such was the very bill now before them—the foundation of the entire change he proposed to introduce. He was not at all blind to the imperfections of that tribunal. What tribunal was there in the world that was not liable to some observation with respect to incidental disadvantages? It had been said over and over again in that House, when discussing the merits of that tribunal, that it wanted a member of the legal profession as its president. His noble and learned Friend (Lord Cottenham) had declared himself of the same opinion. If he could induce his noble and learned Friend who was the father of the measure (Lord Brougham) to place himself for the public good in the situation of president in that tribunal, he thought there would be nothing more to desire. But his noble and learned Friend had said the judges attended voluntarily; and nothing was so bad as a tribunal consisting of judges whose attendance was voluntary. He thought that was an exaggeration—the statement was incorrect. His noble and learned Friend himself had a seat at the Judicial Committee of the Privy Council. By the act of Parliament creating the tribunal, power was reserved to the Crown to create two judges. His noble and learned Friend was created by her present Majesty under that power, first a Member of the Privy Council, and afterwards a
188
Judge of that tribunal. Could it be said that the attendance of his noble and learned Friend, under such circumstances, was voluntary? Having entered into an engagement, having pledged his faith to attend, it was his bounden duty to attend; his attendance at that court, of which he was one of the most efficient Members, was not voluntary. Again, there were several persons in the situation of judges, both of ecclesiastical courts and at common law, who were made Privy Councillors with the same view, and on the faith of their attendance on the court; who could say their attendance was voluntary? Having accepted the office of Privy Councillor under such circumstances, they were bound by the same engagement as his noble and learned Friend, and they were bound in point of duty to attend. The judicial attendance, therefore, was not voluntary. But his noble and learned Friend had designated the court a fluctuating tribunal. He thought that it was a tribunal admirably adapted to the business which came before it, and for this reason—there were various kinds of law agitated, discussed, and settled before it—there were questions of civil and ecclesiastical law; well, there were judges who had been brought up in discussing and administering civil and ecclesiastical law, and when questions of that nature arose their attendance was always required. Again, when questions of equity arose, there were judges from the equity courts members of that tribunal, and when such questions were discussed their attendance was requested, and they formed part of the court. There were questions of common law discussed, and there were Members of the court who were also judges of common law, and they attended on these occasions to give sentences and decide. There were questions of Hindoo and Mahomedan laws discussed, in cases the results of which were often of the utmost importance to the parties concerned; and in cases of this nature the court had the assistance of parties familiar with these laws, and who had acted as judges in India. He asked the House, if — considering what the nature of the questions which came before the tribunal in question often was—he asked it whether he had not fully established the fact, that the tribunal was admirably adapted to the performance of the duties it had to go through. And yet this was the tribunal which his noble and learned Friend wished to abolish after the experience of the working of nine

189
years had proved its advantages. It had been urged against it that there were no fixed terms—no certain sittings. He admitted that this was an inconvenience, but it was a very slight one, and in spite of it, the whole of the arrears he had already alluded to had been swept away, and the business was now disposed of as fast as it presented itself. His noble and learned Friend had stated, that the attendance of counsel was deficient. Now he had attended as a judge in the Judicial Committee, and had always heard the causes argued by men of the first eminence. And on looking through the reports of cases tried, he had found that such was almost uniformly the case—that the most eminent men at the bar had been employed to argue them. It was very well known by all who knew Westminster-hall, that counsel seemed to possess almost a power of ubiquity; that they seemed to appear in two places at the same time, and to give satisfaction to all their clients. But supposing that there were evils in the existing system, what was the remedy proposed by his noble and learned Friend? Like an unskilful surgeon, he amputates what another might have cured. But then it was said by his noble and learned Friend, that in proposing his plan, he was not to be called a Radical Reformer, he merely restored that which had existed in the reign of Richard the 2nd; and to prove, that he was correct he referred to the unpublished book of Mr. M'Queen, in order that he might show that Privy Councillors had formerly assisted their Lordships. He did not doubt but that in less literary times than the present the practice was such as his noble Friend had stated, but then the question was, not what was the practice of the reign of Richard the 2nd, but what was the best course for them now to pursue. Looking, then, at the manner in which the Judicial Committee of the Privy Council was constituted, and the manner in which it performed its duties, he must say, that he would hesitate long before he should abolish it, for the purpose of making an experiment with an untried system. What course, then, did his noble and learned Friend propose to pursue? His first step was to alter the constitution of their Lordships' House. His noble Friend would have them to sit notwithstanding the prorogation. Their Lordships were not to be compelled to sit then; but they might do so, if they chose, under the proclamation of her Majesty. As often as
190
that proclamation was issued they were to be called upon to meet together to transact judicial business. This would be another innovation, and, in his opinion, a monstrous innovation, and that, too, for the purpose of making an unwise change. And then, practically, how would it work? Who would attend the proceedings? The Lord Chancellor must attend; but nobody else was bound to attend. The law Lords might possibly attend; but then that would be a voluntary attendance on their part. These would be volunteers; and yet his noble and learned Friend objected to the attendance of judges on the judicial committee as volunteers. Why, if they had a meeting thus called in the month of September, he was greatly afraid, that one noble Friend (Lord Cottenham), who sat near him would be shooting grouse, while the other noble and learned Friend (Lord Brougham) below him would be regaling himself on his estate in the south of France. He was greatly afraid, that the noble Earl (the Earl of Shaftesbury), their Chairman of committees, would find it an exceedingly difficult task to make a House out of Session. But, then, supposing some of their Lordships did meet, it might possibly occur, that there would be discussions and debates. But his noble and learned Friend said, he expected to be able so to tie up their tongues, as that they should not be able to speak except upon judicial matters. How were they to accomplish that? How force men to be silent? If prevented one way, another mode would be discovered. They had seen a little of the restlessness of his noble and learned Friend since he had come into that House. On some of these occasions, he might get up to taunt his political opponents; but then he would be met by his own clause, and would be required to remain silent. The result, however, he was afraid, would be to prove, and not in the case of his noble and learned Friend alone, that nature or habit would prevail, thus verifying the line—
"Naturam expellas furcâ, tamen usque re-curret."
Then his noble and learned Friend said, that the Lord Chancellor sitting here could have the assistance of the learned judges. Were they to call upon these judges to remain in town during the entire year?— to give them no time for indulgence or re creation, or to prepare themselves for the coming campaign in their respective courts? But then his noble and learned Friend

191
might say, that they could be here in the months of November and December. Why, in the months of November and December they would be engaged in their judicial duties, and it would be as difficult for them to attend then, as it was now, during the sitting of Parliament. On the whole he considered the plan proposed to be impracticable; as impracticable as he conceived it to be mischievous. Suppose, however, it were practicable, and suppose the noble and learned Lord, and his noble and learned Friend (Lord Brougham), and he knew, that both were most anxious to discharge their duty,—suppose that they attended during the prorogation, of what would the House consist? The Lord Chancellor and the two noble and learned Lords, and perhaps, also, his other noble and learned Friend. [Lord Cottenham: " No, no!"] Then his noble and learned Friend would not attend. He (the Lord Chancellor) was not surprised, for he suspected that his noble and learned Friend who was practically wise, not merely theoretically wise, would dissent from this proposition of sitting during the recess. But assuming that, of what did the Privy Council consist? Of the same persons, and also of the judges who had not seats in this House. Here the Judges sat only as advisers of their Lordships; they could give no vote or decision upon any question before the House; but in the Privy Council they sat as judges of the court. But his noble and learned Friend said, there were two appellate tribunals, and what inconveniences resulted from two appellate jurisdictions ! They had nothing to do with each other. Their Lordships in their appellate capacity sat to decide cases in equity and in law from England, Ireland, and Scotland; their jurisdiction was ascertained, limited, and defined. The Privy Council had jurisdiction to decide appeals in law and equity from the colonies and from the ecclesiastical courts; that jurisdiction was likewise limited and defined. These jurisdictions could not cross each other. But his noble and learned Friend said, there might be a conflict of decisions; but not unless the two appellate tribunals crossed each other. And suppose the same question should come before the Privy Council, and on appeal from a court of equity or of common law before this House, was it likely that the decisions would be at variance? Were not all the courts accustomed to look up to the decisions of this House as guides? There was no probabi-
192
lity of any collision; at the same time he did not mean to say, that, under the circumstances, there was no chance of such conflict. All that the noble and learned Lord said was, that it was possible such a conflict might arise; and he stated a case in which it was possible. But was the possibility of such a result a reason why such an alteration should be made? Was it not better to wait till it happened? But then his noble Friend took it that confidence could not be placed in the Lord Chancellor sitting and giving a judgment in his court, and then sitting as a judge in appeal. It was a common thing in a court of equity, that there was the rehearing of a case by a party who had decided it. It never yet had been suggested by any party that, on a rehearing, the judge did not act with the same impartiality as if the case were entirely new to him. There, then, the case was an appeal from the same judge to the same judge. But in that House it was not the same judge who sat alone to hear and try an appeal. His noble and learned Friends gave the Lord Chancellor the benefit of their assistance; and he must say, that he thought it an advantage, that the judge who decided the cause should be present on the hearing of the appeal. There were other judges on such an occasion always present, perfectly ready to take care that he should not depart from the line of his duty. It was his opinion, that no man was fit to be judge who could not be prepared to decide a case with the same impartiality on an appeal as the person to whom it was altogether new. The only apprehension to be entertained was, that from an over-caution, he might be led astray to the other side. But suppose, now, that the plan of his noble and learned Friend were carried into effect, they would have as Chancellor one who never was in a court of equity, who never had the opportunity of making himself master of all its difficulties, but who must be "cram med" for the occasion when his assistance as judge should be required. Thus, then, it was proposed, that there should be an appeal from a judge who had devoted his whole life to equity, to one who might be ignorant of its forms. The appeal was to be from the man eminent for his knowledge, character, and talents, to one of whom the public might know little, and in whom the profession would have no confidence. A fitter plan for putting an end to appeals in equity, there could not be than the measure of his noble and learned

193
Friend, if carried into effect. Another point to be considered was, the time at which this plan was proposed. Only three or four months had elapsed since their Lordships had passed a bill making a new regulation for the Court of Chancery. No one could as yet tell how the bill was likely to work, and now, if this were carried into effect, it would rescind the main provisions of that bill. Such were the observations that he had to make upon the measure of his noble Friend. He had heard of many suggestions for improving the appellate jurisdiction of that House; but, that of his noble and learned Friend, he considered more extravagant and more objectionable than any that had preceded it. On these grounds, he moved, that the bill be read a second time that day six months.
Lord Broughamremarked, that his noble and learned Friend was wrong in supposing that the reason why there were not more appeals from the Lord Chancellor to the House of Lords was, that it was an appeal from the same person to the same person. If that were the case, upon a change of Ministry, there would be abundant appeals from the decision of one Chancellor to his successor; for instance, it might have been expected there would have been appeals from him, when he retired as Lord Chancellor, to his noble Friend (the Lord Chancellor), when he succeeded him in that office. There were, when he was Chancellor, more appeals to the House of Lords in his two first years of office, than in the two last, not above five or six in the whole four years, he believed; and since his noble Friend (Lord Cottenham) had quitted office, he believed there had been no appeals from his decisions to their Lordships besides those previously entered. As to the conflict of decisions, he thought his noble and learned Friend (Lord Campbell) had much exaggerated the mischief. It was true, that the decisions of the Privy Council were not binding upon this House, and that the decisions of this House were not binding upon the Privy Council. But the two tribunals received the decisions of each other with respect, and they had not hitherto varied a tittle. The danger of conflict was obviated by the good sense of the judges. But suppose the worst came to the worst, and the case of "Young v. the Bank of Bengal" had gone before the Vice-Chancellor, and had been appealed to this House after the question had been decided by the Judicial Committee, what
194
would be the consequence? Why a declaratory act would be passed by the Legislature, as it would clearly appear that so much doubt and difficulty embarrassed the question that it was necessary to declare what the law was. He begged, however, to be understood as stating, that he entertained no doubt whatever of the soundness of that decision. He had never maintained, any more than his noble and learned Friend on the Woolsack, that the Judicial Committee of the Privy Council was a tribunal incapable of further improvement; and he thought that a difficulty had been experienced from time to time from the want of a permanent head, though he was far from supposing, that the want would be well supplied by the arrangement to which the kindness of his noble Friend (the Lord Chancellor) had referred as being pressed upon him, that of his (Lord Brougham) undertaking the office. It had been supposed that he had suggested, some years ago, that the whole of the appeal business should be transferred from this House to the Privy Council; but he had proposed no such thing; he had only proposed to their Lordships to avail themselves of the judicial committee as ancillary to appeals in this House, in order to enable the House, whilst retaining its whole appellate jurisdiction, to avail itself of the Judicial Committee in any cases which it chose to refer, by receiving a report from the committee, keeping in its own hands a complete control over the decision, though obtaining the full aid of the judicial committee, and this was really no deviation from the most ancient course of proceeding in this House. By his plan, he retained the assistance of the judges, whilst his noble Friend dispensed with their services altogether, unless they happened to be Peers of Parliament. Had his noble Friend's plan been law some years since, they would have been deprived of the assistance of the Master of the Rolls, the judges of the law courts, and the Court of Chancery, and some of the first judicial characters that ever adorned these courts, either in point of talent or integrity, they at the time not being Peers of Parliament. Need he mention amongst them such men as Lord Tenterden, Sir W. Grant, Chief Justice Mansfield, Sir W. Wynne. They could not have had the assistance of such men, nor could Sir J. Nicholl nor Sir William Scott be present at a single case, however advantageous it might be to avail them-

195
selves of their learning, capacity, and experience. Not one of these judges could, by his noble Friend's plan, have sat as judges at the hearing of a cause. They might have assisted as attendants on the Woolsack, without crossing the invisible line that separates the Woolsack from their Lordships' House, but not one of them could have given his voice in those judicial matters in which they were most peculiarly capable, he might say, exclusively competent to deliver opinions as judges. Thus they might have had a question on the law of nations, on which Sir W. Scott, not being a Peer, Could not say a word—they might have had questions in equity, in which Sir W. Grant dare not speak—they might have had questions peculiarly belonging to a consistorial court, on which Sir W. Wynn must be silent—or if any of these did speak, it could be only in whispers, as persons who attended on that House, but could form no part of it as a judicial tribunal. He put it to the good sense of his noble and learned Friend whether a court so constituted could command greater respect from the suitors and the country, than a court constituted in the way of the Judicial Committee of the Privy Council? Whether were they to prefer a tribunal of appeal where the judges were the most competent, or where the judges were the least competent? Upon these and other grounds, not necessary again to state, he was disposed to vote against the second reading of this bill.
Lord Campbell:I feel, that the opposition of my noble and learned Friend on the Woolsack is fatal to these bills for the present Session of Parliament, but though he can easily succeed in rejecting them, I conceive he has utterly failed in assigning any sufficient reason why they should not pass. He has not even denied, or attempted to palliate the evils experienced in the Court of Chancery from the Chief Judge being called away half his time to hear appeals in this House. He does not venture to controvert my statement respecting the multiplication of appeals in Chancery from the appointment of the two Vice-Chancellors, or undertake to be able to dispose of them during the time at present appropriated for that purpose. He has not said a word of Lady Hewley's case, or suggested that I have in any respect overstated the mischiefs arising to the suitors from the Chief Judge being re moved along with the Government to
196
which he is attached. Nor has he proposed any other remedy for these evils. With respect to the ultimate hearing of appeals, he has not been able to mention any other country in the world where there is the absurdity of having two co-equal courts of the last resort for the determination of the same question, and he contents himself with saying, that as no dangerous collision between the two has yet taken place, none such can ever arise, although the circumstances are now varied, and 1 cited him an instance of the mischief being at this moment practically in operation. Nor has he adduced a single argument to show, that this House might not well be the single court of dernier resort for the empire. But my noble and learned Friend very facetiously begins by complaining that my bill for appointing a permanent judge in the Court of Chancery excludes him for the present from that situation. Were he serious, I should tell him this is only matter of detail to be considered in committee, and that my object was to prevent the multiplication of judges in the Court of Chancery, I having it on his authority that there are already too many. Without this restriction, he would have taunted me with levying new burdens on the country when the Exchequer is impoverished. From among the three Vice-Chancellors, and the Master of the Rolls, the first Chief Judge is to be selected, and although none of them may possess the learning and industry of the present Chancellor, I cannot help thinking that one of them having no distraction, might get through the business as rapidly and satisfactorily as he at present does. But my noble and learned Friend affects a discontent at the exclusion which he does not feel. He hardly wishes to lay down his fasces in this House, and to devote the rest of his days to demurrers and exceptions. Contented with present enjoyment, he knows "he may go farther and fare worse." Then he complains, that I apply this self-denying ordinance to the late Chancellor of Ireland. That person is not probably much aggrieved by the exclusion, as were his qualifications much higher for the situation, there is not much chance of its being offered to the author of bills which my noble and learned Friend denounces as tainted with radicalism. But he says, no charge is brought against the members of the Judicial Committee. Nor was any charge brought against the judges in the commission of delegates when my

197
noble and learned Friend who sits near me in the year 1833, proposed to transfer the hearing of appeals from them to the Privy Council. Those judges had done their duty to the best of their ability, and blame was imputed only to the system. Then my noble and learned Friend delivers an eloquent panegyric on the well-working of the Judicial Committee, because, he says, from its miscellaneous members, there is an admirable tribunal constituted for every particular cause, whether it involves common law or equity, the law of nations, or the canon law, the law of France, Spain, or Holland, Hindoo law, or Musselman law. My noble and learned Friend was strenuous in his exhortation to me to be diligent and punctual in my attendance at the board, and intimated an opinion, that my attendance was not voluntary, but that I was under an implied obligation to attend. His observations show that he does not consider himself under the same obligation, or that he neglected it. [Lord Chancellor: I do not think I was.] I am rather at a loss to understand on what round the obligation should be considered more cogent on me—but I will not further discuss this point, and I will try to be governed by my noble and learned Friend's precept rather than his example. But if he had been at all regular in his attendance, I think he would have been aware that generally the same individuals form the tribunal during the sittings, from whatever court or quarter of the globe the appeals may come. I am very far from questioning their competency. But what say is, that you might more beneficially hare their assistance in the House of Lords. My noble and learned Friend should recollect that my proposal is, that the Judge of the Admiralty and the Judge of the Prerogative Court, as well as the Vice-chancellors, (to whom you may add the Ex-Indian Chief Justices, if you please), should be placed on the Woolsack, where you can have all the common-law Judges, whereas there are only two belonging to the judicial committee, and they are generally absorbed in the business of their own courts; and I hope the number will not be increased unless all the fifteen Judges are to be made Privy Councillors.
Lord Brougham:I entirely agree with my noble and learned Friend as to the invidiousness of making a selection without a fixed rule, but there may be a fixed rule, such as taking the senior puisne Judge from each court.
Lord Campbell:But will the senior puisne Judge be always a person who would be willing and well-qualified to sit in a court generally occupied with business so very unlike that to which he has been accustomed, and when from age or infirmity he may meditate retreat. But, says my hon. and learned Friend on the Woolsack, am I to be pinned down here with two unlucky compeers to dispose of appeals after the 12th of August, and so through September and October, when all the rest of the world are employed in shooting grouse, partridges, and woodcocks. My noble and learned Friend knows full well that 1 do not seek to interfere with his long-vacation recreations, and that I only propose that the House may sit when necessary during the judicial year. Parliament now seldom sits before the month of February, and where would be the hardship on my noble and learned Friend if in the months of November, December, and January he were to be employed in hearing appeals in this House, instead of the Court of Chancery? But he is afraid, notwithstanding any law to the contrary, that there might be political discussion during these vacation sittings. What is my noble and learned Friend's own con* duct at our morning sittings? Keen politician as he is, I have not yet heard him during the hearing of a Scotch appeal rise and break out with a speech in favour of the Corn-law, or to show the necessity for an Income-tax, although there be no positive law to forbid such unseasonable haranguing; and he may surely give others credit for being able to curb their desire to mix politics with judicial proceedings in obedience to an act of Parliament. But my Lords, there can be little use in facther commenting on the speech of my noble and learned Friend, which he succeeded in making very amusing, knowing that if he had resorted to grave reasoning he must fail. For the present the measure is defeated; but I do not despair of seeing it carried before long, and with the powerful support of my noble and learned Friend. Although strong in the profession of his opinions at the moment, he cannot be accused of obstinacy. I could mention more than one important measure, which, having warmly opposed, he has patronised with equal warmth. It is a well-known fact in the history of the Prisoners' Counsel Bill, which was so often introduced before it was carried, although now all approve of it, that my noble and learned Friend

199
made the best speech against it and for it. He has to-night made a very able speech against these bills, but when they are next brought forward I trust he will make a still better speech in their favour, and that being passed under his auspices they will be found to have introduced a substantial improvement into the administration of justice in this country, and give him an additional claim to the admiration of posterity.
The Duke of Wellingtonwished to draw the attention of the House to one point to which his noble and learned Friend on the Woolsack had not adverted. It was necessary that the great office of Lord Chancellor, which was of such high importance on account of the judicial duties belonging to it, on account of its giving the power to preside over the debates of that House, and on account of the great position which it conferred in her Majesty's councils, should be filled by one well acquainted with the laws of this country. They should, therefore, take care that the person whom they placed in that position was not ignorant of those laws, or unacquainted with their daily practice in the highest courts in the kingdom. If the subject was to be brought forward in a future Session, he hoped the noble and learned Lord would take care to introduce a provision, that the person filling the office of Lord Chancellor should be a barrister of fifteen years' standing.
Lord Campbellsaid, the noble Duke was under a very unnecessary apprehension that these bills would increase the danger of a disqualified person being appointed Lord Chancellor. As the law now stood, there was no necessity for the Lord Chancellor being a barrister at all, and in point of fact, Sir Thomas More, in the reign of Henry 8th, was the first layman who had been Chancellor for centuries. The public would continue to have the same guarantee against a bad appointment in public opinion and the responsibility of the advisers of the Crown. The Chancellor to preside in the House of Lords become the sole court of appeal in the last resort for the whole empire, ought to be one of the most accomplished lawyers of the day, although he no longer pays occasional visits to the Court of Chancery; and every motive that now exists for selecting such a person to be Chancellor would remain in full force.
The Duke of Wellingtonthought that, under the measure proposed by the noble and learned Lord, an unfit person might possibly be appointed Lord Chancellor,
200
and therefore, he thought the provision desirable that he should be a barrister of fifteen years' standing.
Bills put off for six months.
House adjourned.