Lords Sitting of 1 March 1842

MINUTES.
BILLS. Public.—1a Appellate Jurisdiction (House of Lords); Appeals (Privy Council); Transfer Administration of Justice(Court of Chancery).
PETITIONS PRESENTED. By the Earl of Roseberry, from Stirling, Linlithgow, and Dalmuir, and Lord. Brougham, from Renfrew, for Repeal of the Corn-laws, and for Universal Suffrage.—By the Duke of Richmond, from Millers of London and its neighbourhood, for Protection.—By Lord Brougham, from Congregations of Dublin, Castle Caulfield, and Cairn Castle, to Legalize certain Marriages by Dissenters.—By the Duke of Buccleugh, from Banff, for Securing the Freedom of Election.

COURT OF APPEAL.
Lord Campbell:In presenting three bills which I have prepared for your Lordships' consideration, I intend shortly to state their object,—reserving the fuller explanation of them to the time when they stand for a second reading. I am glad to think that the measure which I propose is not of a party nature, and that in bringing it forward, it will not be necessary for me to make any observations which can be painful to the feelings of any individual. Giving all credit for what has been already done, I aim at a farther improvement in the administration of justice in this House,—in the Privy Council,—and in the Court of Chancery. 1 need not point out to your Lordships the extreme importance in every country of the Court of Appeal in the last resort. This court not only finally decides upon the rights of parties, but authoritatively settles and promulgates the law; and your Lordships may be aware, that the code of every nation originates much more from judicial decision than from legislative enactment. The supreme court of appeal ought to consist of judges of the highest learning and character, whose duty it is to attend all its meetings,—with a permanent head to preside over it,—sitting at fixed times—expeditiously disposing of all the cases brought before it—without excessive expense being cast upon the suitors who resort to it. Have we such a tribunal in England? From early times this House has without dispute had jurisdiction in writs of error from the courts of common law. It was
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not till the reign of Charles 2nd that you established your right to receive appeals from the courts of equity,—respecting which there had been great uncertainty and irregularity. Before the Reformation the appeal from the Ecclesiastical Courts was to the Pope. In the reign of Henry 8th, when all intercourse with the see of Rome was broken off, a strange expedient was resorted to, which continued in practice till the reign of William 4th, of appointing a tribunal for each suit appealed from the ecclesiastical courts, by a commission of delegates appointing a certain number of common law judges and doctors of the civil law to decide it, if they could agree, or there should be a majority on either side; —if not, their number to be increased by "adjuncts" of the same description. Appeals in prize causes were brought before Commissioners of Appeal specially appointed by the Crown. From the Channel Islands and the colonies the appeal was to the King in Council, and so it was from the Court of Admiralty and the Lord Chancellor sitting in lunacy, by virtue of a deputation under the royal sign manual. Things continued in this state till the year 1833, when the act was passed, constituting the Judicial Committee of the Privy Council, for which the public is much indebted to my noble and learned Friend who then presided on the Woolsack (Lord Brougham). By that act the Court of Delegates was abolished, a committee of the Privy Council was established, consisting of those who hold or have held high judicial offices,—and to this tribunal were referred all prize appeals and all appeals from the ecclesiastical courts, from the Court of Admiralty, from the Channel Islands, and from the colonies. This was undoubtedly a great improvement, but it still left the system imperfect, and experience has shewn that further change is inevitable. I need hardly go farther, than to point out that you have two courts of the last resort, coordinate, of equal authority, to whom the very same questions of law are referred, and who may decide those questions different ways. There is no question of English law which may be brought before this House which may not likewise be brought before the judicial committee, as little bound by your decisions as you are by theirs. Under these circumstances discrepancy of decision must arise—most galling to the losing party, and most injurious to the public. The very same question may come before either tribunal of appeal

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in the very same suit. Take, for example, the late Braintree case, when the question was, whether churchwardens, of their own authority, could make a church-rate against a vote of the majority of the rate-payers. If it had gone on by appeal from the sentence of the Consistory Court of London, it would have been brought before the Judicial Committee. An application was made to the Court of Queen's Bench for a prohibition,—upon which a writ of error lies to this House. Your Lordships may decide with the Queen's Bench that the churchwardens have not the power, and the Judicial Committee, with the Consistory Court, that they have. In this conflict, how are churchwardens to act? and are the parishioners to pay or refuse to pay the rate? Then the allotment of business to the two tribunals is very whimsical, and without any regard to its difficulty or importance. Questions respecting marriage and divorce go to the Judicial Committee, although, indeed, the validity of the same marriage, arising in a different shape, might, upon a bill of exceptions, or, special verdict, be brought before this House. The validity of wills of personal property, however great the amount, is to be determined by the Judicial Committee,— of which he had lately an instance in the will of Mr. Wood, of Gloucester, bequeathing a million of money. But your Lordships are to determine the validity of a will of real property, if it devise only half a rood of land. The two tribunals, consisting of different judges, can hardly be supposed equally entitled to the confidence of the public. And why should questions of such magnitude to the parties and the public be determined by the one inferior in efficiency and in reputation? Another inconvenience follows from the separation; —that a bar devoted to the appellate business cannot be formed. I need not point out to your Lordships the importance of an adequate bar to the due administration of justice. Judges, however learned and laborious, cannot satisfactorily decide the causes brought before them, unless they are well argued by advocates on opposite sides; and advocates cannot satisfactorily do their duty, unless they chiefly confine their practice to one court. But the Judicial Committee does not sit above forty or fifty days in the year, and the advocates who are to plead there, must be brought for the occasion from other courts. A heavy expence is thus thrown upon the suitors; for in every case, without regard
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to the magnitude of the stake, or the labour required, the quiddam honorarium given to the Counsel, so brought from his own court, cannot be less than a certain fixed amount—considcrably exceeding what would be sufficient for him in the same cause coming on in a court, in which he usually practises. The solicitors must, likewise, have extra remuneration, and the members of the Judicial Committee, lately deliberating on this subject, came to the conclusion, that in taxing costs, they could not allow the solicitors less than half as much again as the tariff in the Court of Chancery, or Queen's Bench. I will mention only one other inconvenience of two Courts of Appeal in the last resort, that both may, and occasionally must, sit at the same time; so as to deprive one of them of efficient members, exceedingly to harass the counsel, and very much to prejudice the suitors. You must then choose between the two, and transfer all appeals to that tribunal which you prefer. This was strongly felt by my noble and learned Friend, who, in the year 1834, laid upon your Lordships' Table a bill to transfer all the judicial business of this House to the Privy Council. My Lords, my plan is to transfer all the judicial business of the Privy Council to this House. The Judicial Committee, in my judgment, is subject to various defects which can hardly be remedied. It has no permanent head. The President of the Council, if present, presides; but he has not been professionally educated, and is unacquainted with judicial proceedings. I can say, most unaffectedly, that on questions of fact, which have come before the Judicial Committee, such as whether a testator was sane or insane when he made his will, or whether he was fraudulently induced to sign it, we have derived every valuable assistance from the acuteness and discrimination of the present Lord President, who sits opposite; but he would hardly like to give an opinion concerning contingent remainders, and executory devises; and he could hardly expect a judgment by him on such a subject to be received with much deference. In his absence, the Privy Councillor of highest rank, who is pleased to attend, presides, and he may make us regret the Lord President. The attendance of the members is quite voluntary, and the greatest difficulty has often been experienced in forming a Board. The Judges are a fluctuating body, no one being able to tell whether the individuals

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who decided a cause yesterday, will decide a cause of the same sort to-morrow. Then they have no such power as your Lordships possess, of calling in the Common-Law Judges as assessors, in cases of difficulty. In the original constitution of the Court, two or three Common-Law Judges were selected, and sworn Privy Councillors, that they might act as members of the Committee. I protest against this course being continued; unless all the Common-Law Judges can be made Privy Councillors, make none. The selection, I know, gave great offence, and caused great heartburnings in that venerable body. I must likewise consider the practice highly unconstitutional. The Judges may consider the honour of being of the Privy Council an object of ambition, and this is to be gratified or disappointed as they may happen to make themselves agreeable or obnoxious to the Government of the day. I must likewise protest against an enactment, such as I think was introduced into my noble and learned Friend's bill of 1834, giving a power to the Privy Council at pleasure, to summon the Judges ad conciliendum. These learned persons, like their predecessors, from time immemorial, cheerfully obey the summons of your Lordships, sitting in the House of Parliament, and representing the supreme power of the State. But I know they consider that it is inconsistent with the dignity of their office, and would hurt their usefulness, if they were subject to the summons of a Committee of the Privy Council, which may consist of individuals for whom they could not have any very profound respect. Let all appeals, then, be brought to this House, the ancient constitutional Court of Appeal for the empire. I have supported and defended the exercise of your appellate jurisdiction. In your political and legislative capacity, I have often had the misfortune to differ from your Lordships, and to think that you made by no means a wise use of the power you possess, and I rather conceive that the mass of mankind have agreed with me; but in your judicial capacity you have deserved and enjoyed the confidence of the public. It is easy to ridicule the theory of hereditary judges; but in practice the appeals in this House have been decided by a succession of illustrious judges who have presided on the Woolsack, assisted by lawyers who have filled high judicial offices, and have been elevated to the Peerage. In the other House of Parliament, I had occasion to
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defend you against the assaults of the present Lord Chancellor of Ireland, who in no very measured terms condemned the manner in which the judicial business of this House is conducted. He not only considered the chancellor incompetent per se, but he censured the interference of law Lords in their ordinary garb and found fault with every thing down to the clerks sitting at the Table while appeals are heard. He was to march in two Lords assistant who were to dictate to you the judgment you were to pronounce, and by whom your jurisdiction would have been virtually superseded. I advise you to retain that jurisdiction, as an invaluable part of your privileges conferred upon you for the public good. You have it in your power at all times, to call in the assistance of the common law judges. I propose that the Vice-Chancellors, and likewise the Judge of the Admiralty Court, and the Judge of the Prerogative Court of the Archbishop of Canterbury, should be summoned at the commencment of every Parliament that you may have similar advice in questions of equity and civil law. I have not ventured to include the Scotch judges on account of the distance of their residence, but it may be matter for future consideration whether they ought not to be included; and as a native of Scotland feeling for the honor of my country, I trust that when summoned they will be placed on the Woolsack alongside their English brethren, and not ordered to remain as in some instances they have been like criminals at the Bar. Here, then, you will have one court of ultimate appeal combining all the requisites of such a tribunal. The expense of bringing appeals here I know is at present great; but this may be considerably reduced by there being an exclusive bar, and by regulations which it is in your power to make respecting fees received by officers of the House. There is no reason why the expense of hearing an appeal at the Bar of this House from the Lord Chancellor, should be greater than hearing an appeal before the Lord Chancellor from the Master of the Rolls. Such being some of the advantages of this transfer, what are the objections to it? The Queen's subjects at home who may be suitors in the Admiralty or Ecclesiastical Courts, must rejoice. The colonies must all rejoice. There is nothing more natural or constitutional, than that the appellate jurisdiction of this House should be co-extensive with the British empire.

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Before the year 1782, when Ireland was declared to be an independent kingdom writs of error and appeals were brought from the Irish courts to this House, and why should not the same course be followed with respect to the courts in Jamaica and Canada? These are the Queen's Courts, and the appeal will be to her Majesty in Parliament. This House will not be legislating for the colonies, but only declaring the law. Legislation for the colonies will still belong to the Queen in Council, or to the colonial assemblies, or to the whole Imperial Parliament. But it will be said, the House of Lords will riot have time during the Session to get through all this judicial business. I believe that it would not;—particularly considering the increased influx of appeals from the colonies which might be expected from this improvement. But where is the objection to the House of Lords being directed by the Crown to sit for judicial business during the prorogation of Parliament. If precedent be wanting, we have one in an act passed in the 14th of Edward 3rd, for appointing a committee of the Lords to sit during the time of prorogation,—an act, no doubt, produced by the inconvenience felt even at that early time from the long suspension of the sittings of this high Court of Appeal. Even with regard to the exercise of your ancient jurisdiction, this would be a great improvement. At present generally no appeal is heard from July or August to the middle of February, which must necessarily produce great inconvenience with respect to appeals respecting injunctions, the custody of infants, and other subjects of pressing urgency. The plan I suggest, necessarily supposes the constant attendance of the Lord Chancellor in this House throughout the judicial year. He is for ever withdrawn from the Court of Chancery. But this, my Lords, seems to me to be a very great advantage; for now we shall have a judge appointed to preside in that court quamdiu se bene gesserit. I do not concur in the sentiment which has often been expressed, that the union of political and judicial functions in the same individual ought never to be permitted. I allow that some political and judicial functions are incompatible. I think it was wrong in the year 1806, to make the Chief Justice of the King's Bench a Cabinet Minister, so that he might have had to sit on the trial of a prosecution for libel or high treason which he himself had
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directed, and on the event of which the stability of the Administration might depend. But if the Lord Chancellor had full time for all the duties cast upon him I can see nothing objectionable in their being united in his person. What I do object to is, that in the highest civil court in this kingdom the judge should be removeable at the will of the Crown; and as a matter of course, should he removed as often as there is a change of Administration. What should we say if the Chief Justice of the King's Bench, or Common Pleas, or the Chief Baron of the Exchequer were so removeable and removed. It is only use that prevents us from seeing that the grievance is as great to the suitors and to the public by the removal of the Chief Judge in the Court of Chancery. The evils are great and palpable, and it might appear invidious to illustrate them by examples. The only question is, whether, upon an enlarged view of all our institutions, it is necessary for the purpose of preventing greater evils, that these evils should still be endured. Formerly, there might be a necessity for the Chief Judge in the Court of Chancery being removeable with the Administration. I allow that for the dignity of this House and the efficient discharge of your duties, it is essential that the highest Judge of the land should preside here, and should act in concert with the Government of the day. It is likewise essential that, in every Cabinet, there should be a Member qualified to give a sound opinion on every legal and constitutional question which may arise. Till recent times, perhaps, this could only be the Chief Judge in the Court of Chancery; and hence it was necessary that he should hold his office by such a precarious tenure. The appellate business of this House was wholly insufficient to occupy the time of a Judge, and was disposed of by sitting a few hours two or three days of the week. Now you have occupation for a supreme Judge in this House throughout the year. He, therefore, presides here, and sits in the Cabinet being removeable with the Administration; and all objection vanishes to having a permanent Judge in the Court of Chancery. There is by no means the same inconvenience to be apprehended from the removal of the Chancellor presiding in this House in appeals; for he still remains a Member of the House. He can still give judgment in any causes which have been argued before him previous to his removal,

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and as ex-chancellor, he will assist, and be a check upon his successor. One great advantage of this change is, that it will let in an effectual appeal in all cases from the Court of Chancery. The business in the Court of Chancery has been admirably done by a succession of very able men holding the great seal, but before any cause or point of law is finally determined, there ought to be one appeal, the greatest men being fallible. But the appeal from the Chancellor in Chancery to the Chancellor in the House of Lords, has been little more than a mockery;—and the reputation of Lord Hardwicke cannot be rested on the fact, that none of his decrees were reversed. It is an appeal ab eodem, ad eundem, and as Sir E. Sugden says, with truth as well as point; it is not from Philip drunk, to Philip sober—but from Philip sober to Philip drunk, as the Chancellor is likely to view the case more calmly and dispassionately in the Court of Chancery before he has committed himself by any expression of opinion, than when he sits upon his own trial in the House of Lords and for the sake of his reputation he takes almost as great an interest in the result as the parties to the suit. In the judicial committee, the Judge from whose court the appeal comes is not allowed to sit, while in the House of Lords he has usually been the only Judge of appeal. Is not the removal of this grievance, a strong reason for having a permanent Judge in the Court of Chancery and another person presiding over the deliberations of this House? But it is said, the appellate Judge cannot properly discharge his duty unless he is at the same time sharpening his faculties by acting occasionally as a Judge of a court of original jurisdiction. There is no ground for this objection either in reason or from experience. The judicial business of this House must be abundantly sufficient to exercise the understanding, and to keep up the learning of any Judge, and he may see more clearly when always elevated above the heats and mists which may obscure the inferior regions of the law. In no foreign country are the Judges of the Court of last resort allowed to sit in a court of original jurisdiction; and it is a curious fact, that in those foreign countries, generally speaking, it is only the decisions of the courts of last resort that are reported and received as authentic declarations of the state of the law, while in England, almost the whole body of the law is traced to reports of the deci-
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cisions of the inferior courts, and Sir John Leach would not allow the decisions of the Privy Council to be quoted as authority, and very much regretted that they were ever printed. I am happy to think that the object I have in view may be accomplished without any addition to the number of Judges. By an act of the last Session of Parliament, two Vice-Chancellors were appointed. I find they, with the other Judges of the court, are rapidly reducing the arrears so long complained of; and that there is every reason to believe that four Judges will be sufficient to keep down all arrears for the future. It will be observed that I am not withdrawing the entire power of one Judge from the Court of Chancery; for the Chancellor, during the Session of Parliament, sits three days in the week in the House of Lords, his progress in the Court of Chancery is impeded even on the days he sits, by their alternate recurrence, and he is not unfrequently called away by Cabinet Councils, and other political distractions. I propose then that one of the four remaining judges shall be appointed to preside as Chief Judge. This is necessary to preserve subordination, and to give an appeal upon interlocutory proceedings without necessarily coming to the House of Lords. I think, after a final decree by the Master of the Rolls or the Vice-chancellor, the appeal should be to the House of Lords. At any rate, I would allow only one unsuccessful appeal, and that the decision of the Chief Judge affirming the order or decree of the inferior Judge shall be final. To carry these views into effect, I have prepared the three Bills which I hold in my hand. The first transfers the hearing of all appeals from the Judicial Committee of the Privy Council to this House. The second empowers the crown to summon this House to sit for judicial business when Parliament is prorogued. The third appoints a permanent Judge to preside in the Court of Chancery. I should observe, that the Judicial Committee will still remain, for the removal of patents, for giving an opinion on any question of law propounded to it by the Crown, and for other useful purposes. It seems to have been thought by all who have considered the subject, that the present state of things with respect to the appellate jurisdiction and the Court of Chancery, is unsatisfactory, and that some considerable change must be made. My noble and learned Friend, the parent of

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the Judicial Committee, has proposed that your Lordships should divest yourselves of your appellate jurisdiction altogether. My noble and learned Friend now on the Woolsack, brought in a bill having for its object that a Vice-Chancellor should be appointed to preside in the Privy Council. My noble and learned Friend his immediate predecessor, proposed that this duty should be done by the Master of the Rolls. My noble and learned Friend the Master of the Rolls, more adventurous, proposes a tripartite division of the Lord Chancellor; one-third of him to sit in the Court of Chancery, under the name of Lord Chancellor; one-third to act in this House, under the title of President, in matter of appeals and writs of error, backed by Lords-assistants; while the remaining third is to be minister of justice, under the title of Lord Keeper. With all deference to my noble and learned Friends, I think my plan is the simplest and the most efficacious. It creates no new office; it disturbs no recognised institution; it brings no fresh burden on the country; it only applies more efficaciously to the despatch of judicial business the judicial machinery which we now possess. The details of the Bills will be before the House on the second reading, and I shall then be prepared to explain and defend them.
The Lord Chancellor:Though he could not object to the course his noble and learned Friend had taken, in laying the hills upon the Table, must, at the same time, observe, notwithstanding his noble and learned Friend had told their Lordships, that the profession had generally approved of his plan, that he had not been kind enough to communicate the contents of those bills to him, and he therefore should be excused if he did not follow his noble and learned Friend into the details of his measure, but confined himself to some general remarks. First, with regard to the Court of Chancery. The noble and learned Lord had referred to the bill of last Session. That, bill had received the support of noble Lords on both sides of the House. Its object was to reduce the arrear of causes in the Court of Chancery, so that a suitor would be able to be heard as soon as his cause was ready for hearing; and he was happy to be able to state to their Lordships, that that object had been completely accomplished. Twelve years ago, when he before held the Great Seal, he had introduced, at two successive periods,
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bills which were directed to the same object, but which, although they passed their Lordships' House, met with so much opposition in another place, that they failed of success. But with regard to the bill of his noble and learned Friend who sat near him (Lord Cottenham), he was happy to be able to congratulate him upon the result of his measure, which was a most wise one, and had been attended by the results which he (the Lord Chancellor) had felt confident would flow from it. Look at some of those results. In the month of November last, at the commencement of Michaelmas term, when the bill came into operation, there were upwards of 500 causes waiting for hearing in the Court of Chancery, and that state of things had continued for a considerable period. Such was the state of the business that his noble and learned Friend told them that the judges who tried the causes had been obliged to sit permanently, as it were, night and day, the Vice-Chancellor having risen on one morning at four o'clock, and the Chancellor haying gone to bed at the same hour. Since November 230 new cases were set down, making in all 730 cases in arrear for trial. But, at the present moment, including the new causes as well as the old ones that stood over, there were not more than 100 causes in arrear. [Lord Brougham: 132.] When such a reduction had taken place in so short a time, he did not think he had been wrong in saying, that the object of his noble and learned Friend's bill had been fully and completely accomplished. He was well aware that his noble and learned Friend on the Bench below (Lord Brougham) would state that this result was only a verification of his prediction; but his noble and learned Friend had over and over again stated to the House, and in the committee, that his opinion was, that one additional judge would be sufficient. Did his noble Friend entertain the same opinion now? He thought the actual state of the business of the court had sufficiently decided that point. It had been over and over again stated in the committee, by persons of the greatest knowledge and experience in the law, that it was their opinion that if additional facilities were afforded for the trial of causes, there would be a great accession of business in the Court of Chancery. That opinion had been justified by the event. The increase was no

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less than 30 per cent., exclusive of those causes that were not yet ripe for hearing, and were not therefore included. To get rid of the arrears in the Court of Chancery was an object of the last importance. Their Lordships could form but a very imperfect conception of the grievances to which suitors were exposed by repeated delays. The term fees alone caused by the arrear of causes amounted in a single year to no less a sum than 42,999 l. The main question on the present occasion, however, was that which concerned appeals. His noble and learned Friend had argued that the new arrangements would increase the number of appeals. But at the present moment there were not more than twenty-four appeals, and he was satisfied that the result would be, that when the business regularly fell into its ordinary channels, there would not be more than fifteen or twenty appeals each year. It thus was quite obvious, that the Lord Chancellor could well attend to those appeals during the year without interfering with his other functions, and so steadily perform his duties in their Lordships' House. His noble and learned Friend (Lord Campbell), however, had thought fit to throw out that it was unwise for the Chancellor to sit on appeal against his own decisions; but when his noble Friend made those remarks, he could not think that his noble Friend had sufficiently borne in mind the weight and importance of the judicial character. He might undertake to say, that when a case came before a judge, either on rehearing or appeal, he looked with as much caution to the considerations which had influenced his own decision, and perhaps with more, than he would had the decision been that of another. But how could such an argument apply to the judgments on appeal in their Lordships' House? Then, the Lord Chancellor did not sit alone—he had the aid of other noble Lords—indeed, he (the Lord Chancellor) had been sitting now for several days on appeals in that House, assisted by several noble and learned Lords. All decisions come to under such circumstances were not merely the decicisions of the Lord Chancellor, but had the benefit of the most careful consideration by other noble Lords. He trusted his noble and learned Friend would see that there was no foundation for his observation. He appealed to him whether be thought it founded in truth and justice,
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and whether he ought to have pressed it forward on an occasion like the present. With regard to the Judicial Committee of the Privy Council, also, his noble and learned Friend had made some observations. He had contended for a change, on the ground that the House of Lords could always obtain the assistance of the judges in coming to their conclusions. Did his noble and learned Friend forget the judgments that had been given in committees of the Privy Council by such authorities as Lord Stowell and Sir W. Grant? His noble Friend called upon them to abolish that tribunal, whereas their Lordships, within only a very few years, had thought fit to extend its jurisdiction, and to establish it on a more solid basis. The constitution of that tribunal appeared to him to be admirably adapted to the consideration of the subjects that were brought before it. Questions were brought before it involving almost every kind of law on the face of the earth. There was the colonial law, every kind of European law, every kind of Eastern law, Spanish law, French law, both according to the new code and the old, Dutch law, English law, both common law and equity, the colonial statutes; and, in addition to these, the Oriental law, the Indian law, and the Mahomedan law. There was also the ecclesiastical law. The constitution of the tribunal was admirably adapted to the purpose of dealing with questions embracing so vast a range of judicial knowledge. There were judges of England to decide on questions of common law, and the equity judges to decide upon matters of equity. There were the judges of the ecclesiastical courts to decide upon questions arising out of the ecclesiastical law; and with regard to Eastern law, there were among the Judicial Committee two hon. and learned individuals who had filled the highest judicial situations in the East, and who were able to give advice to the committee on questions connected with Oriental law. His noble and learned Friend had alluded to a difficulty in bringing the members of this tribunal together. He was not aware of any such difficulty—he had never heard of it. It might happen now and then on particular occasions that they could not constitute a court, because the particular individuals required for it were engaged in their occupations, the judges being summoned according to their official acquaintance with the subjects to be brought be-

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fore them. But the strongest argument against his noble and learned Friend was, that the committee of the Privy Council had given satisfaction, perfect and entire. But then his noble and learned Friend said, that they only sat thirty or forty days, which he contended was not enough for the due discharge of the business brought before them. It appeared, however, that there was now no arrear in the business of the committee. There were only eight or nine appeals now standing for hearing, and he believed there would not have been even that arrear had it not been for the circumstance that certain East Indian cases had stood over because there was no person to prosecute them. This difficulty had now been removed; and he was sure that, in future, the Court would go on, as it was now proceeding, and in a manner perfectly satisfactory to the suitors who awaited its decisions. With regard to the voluntary attendance of those who formed this tribunal, he was not disposed to say anything. When he found a system working well, and the public satisfied with it, he was one of those who would not be inclined to introduce any change. It had been said by a great man, that no change should be made in a law, unless the alteration which was proposed was demonstrably better. He was willing to subscribe to this view, for he was not disposed to change for the sake of change. But he was not surprised that the noble and learned Lord should have come down to the House with this proposition; he had led a life of continuous activity, and having now little occupation, he appeared desirous to devote himself to the introduction of alterations in the laws of his country.
"Quod petiit, spernit; repetit quod nuper omisit;
Æstuat, et vitæ disconvenit ordine toto; Diruit, ædificat, mutat quadrata rotundis."
But, after all, the proposition of the noble and learned Lord possessed little novelty, for it was very like a scheme which had been already introduced to the House by a noble and learned Friend of his (Lord Cottenham), but which, after having been debated, was rejected by a large majority. Turning now to what had been said with regard to that House, he should say that there never was a moment when it was less necessary to interfere with the appellate jurisdiction of this House. Four noble
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and learned Lords constantly devoted their attention to the business of appeals, and nothing could advance better than their appellate jurisdiction. But then it had been said that it was monstrous that there should be two co-ordinate appellate jurisdictions—those of the House of Lords and of the Judicial Committee of the Privy Council. But they were not co-ordinate in every sense, because the jurisdiction of one of them went to certain parts of the empire, while that of the other extended to another. It was urged, too, how dangerous it would be if the two tribunals came to different and conflicting decisions. The Privy Council had sat for two hundred years, and in no one instance had there arisen any conflict between its decisions and those of the House of Lords; so that, practically, no inconvenience whatever had arisen upon this point. Various propositions had been made with respect to the office of Lord Chancellor. First, it had been suggested that the Chancellor should be cut in half, and that one portion of him should sit in the Court of Chancery, and the other in that House. Then, again, it had been suggested that he should be placed in a sort of easy chair, between two assessors. Then the noble and learned Lord (Lord Brougham) had proposed to take away the jurisdiction of the Lord Chancellor and give it to the Privy Council; and now the noble Lord (Lord Campbell) wanted to take away the jurisdiction of the Privy Council, and give it to that House. Such different and incongruous views did learned Lords take of the same question when they came to consider it, with the object of effecting some alteration. For his own part, he said, that the present system worked well; and, while such was the case, it would be a wild and useless task to attempt to effect a new regulation. Then as to the time of the sitting of the House. He had never heard, that the present plan was attended with any practical inconvenience. How was it with the courts of common law? In the month of June every year they ceased to sit for the purpose of deciding questions of law, and they did not reopen their courts for the same purpose until the month of November —a period of four months and a half. But what was the difference? These courts did not sit more than seventy days in the year for deciding questions of law, while this House actually sat one hundred days for the same purpose. The noble

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and learned Lord had suggested an extended period of sitting of the House; and that the House might be summoned specially for this purpose. This, however, could not be done without an alteration of the whole constitution of Parliament being effected: and the consequences would be, not only the inconvenience resulting from this innovation, but that during the regular sitting of the House the Lord Chancellor would be altogether absorbed with his political duties, and that the judicial business of Parliament would be disposed of by him and the two or three law Lords whose feelings might prompt them to attend for the purpose of considering the appeals: and the effect would be, that in the course of a very little time this tribunal would be deemed not the appellate tribunal of the House of Lords, but as an appellate tribunal sitting within the walls of the House of Lords. It had been said, that the weight of their Lordships' House depended upon their judicial authority. That authority had been firmly established, and he hoped that they would not allow it to be taken from them, or lessened, or permit their power to be lowered in the consideration of the country—an object which some persons were desirous of effecting; but that they would endeavour, on the other hand, to support that power and authority which the country deemed of so much importance. He was not then enabled to go into the details of the bill, but he trusted, when it should come to be fully considered, he would be able to show that it was not one deserving of the confidence of their Lordships' House, and he did not think when it became known to the profession, it would receive their support.
Lord Cottenhamhad listened with great attention to the proposition of his noble and learned Friend; and, not having been aware of the nature of the proposition, he had been anxious to hear the remedy he proposed for the evils of the present system of appellate jurisdiction. As his noble and learned Friend proceeded, he found much to approve of in what he had stated, and he had been not a little surprised that his noble and learned Friend had proposed to their Lordships a measure similar to that which he (Lord Cottenham) had proposed in 1836, and he hoped that it would meet with more success. His proposition had been rejected by their Lordships on the Second reading of the bill by a very consi-
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derable majority, and from that time he had never had any encouragement from the House to renew his proposition. He had had in view two great objects:—one, the appointment of a permanent head to the Judicial Committee of the Privy Council; the other, the appointment of a permanent head to the Court of Chancery. He had always felt, that the measure of his noble Friend (Lord Brougham) constituting the Judicial Commitee had been defective, because that court had not a head responsible for the proceedings in that court. He did not consider any judicial establishment in this country properly filled unless there was some person whose duty it was to preside over it, and be responsible for the business transacted in it. He had always felt likewise, that in the Court of Chancery there should be some individual who should direct his whole attention to the judicial business; and it had appeared to him that, with the force of that court, previous to the late act, without any additional judges, it could have kept down the arrears and disposed of the current business of suitors, if it had bad a permanent head. His proposition was, that the Lord Chancellor should preside in all appeals in that House, and also in the Judicial Committee of the Privy Council. He did not propose to remove the judicial business of that House to the Privy Council, nor the business of the Privy Council to that House. It was unnecessary to do either one or the other, for if the great law officer was placed at the head of both, both would have the advantage of his great talents and experience, and he would direct the business of both. True it was, that his bill provided, that the House should sit for judicial business, notwithstanding the prorogation of Parliament, and he believed, that that part of the bill had united many of their Lordships against it; and, if he had renewed the bill, he should have omitted that part of it; for, upon a calculation he had made, he bad found, that all the objects he had had in view could be effected without it. There would be no difficulty in getting rid of all the appeals if the Lord Chancellor had no other business to attend to than the judicial business before the House, and when the House was not sitting, he might apply his attention to the business before the Judicial Committee; so that it would not be necessary that the Session should be prolonged. To the extent, therefore, of a proposition to give to the Court of Chancery a head, and which should not take the Lord Chancellor

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out of the court to exercise jurisdiction elsewhere, and to give a permanent head to the Judicial Committee of the Privy Council, he should be ready and anxious to give his support. But it appeared to him a most unfortunate time to make such a proposition, for an act had recently passed, making an alteration in the establishment of the Court of Chancery, in order to dispose of arrears in that court, and that experiment had not yet been tried. The noble and learned Lord on the Woolsack had said, that a great deal had been done, and that a large proportion of the arrears had been got rid of; but the noble and learned Lord could not calculate what a few years more, or even a few months might effect; yet in a few months after the experiment was begun, his noble and learned Friend proposed to take away one of the judges of the court to which two judges had been added. It might be, that in due time, everything would be done in the Court of Chancery, and that no suitor would be waiting for a judge to hear his cause; but, till that took place, the establishment of that court should be left in the situation in which it was placed by the bill of last Session. Whilst the experiment was going on, it would not be wise to interfere with it, and undo in February what had been done in September.
Lord Broughamwould take another opportunity of stating in detail what occurred to him upon his noble and learned Friend's bill. Nevertheless, and notwithstanding the observations of the noble and learned Lord, he would take leave to snake a few observations on the present occasion. As to the proceedings in the Court of Chancery, it was true he had been of opinion and still continued to be, that two judges were not wanted. He had always, believed, and contended, that the arrear was only temporary, and that as soon as it was once got rid of, one additional judge would be sufficient; though he thought even one would prove unnecessary now as his noble and learned Friend had stated, the great arrears in the Court of Chancery existed no longer. The bill was passed in September; it came into operation in November. Four months including the Christmas recess had sufficed to get rid of all arrears. In November there were 508 causes in arrear; upwards of 200 new causes had been since set down for hearing; it was now stated that there were but 132 ready for hearing, of which thirty-two had been set down in the month
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of February. Not only was there no longer any arrear of the 508 causes, but there were 100 over and above the arrears, which the court had disposed of being ready to take the rest in the ordinary course. It had been said by many practical men, that it would take years and years to clear off the arrears, and yet they had been swept away in not many weeks. Then there were the speculations of his noble Friend, that there would be an increase of business in the court; that if the channel were cleared the stream would enlarge in proportion to the width given to it. Now in the year 1832, there were no arrears, not only in matters of appeal but in original causes. When he (Lord Brougham) rose at Christmas, 1831, there was no cause ready for hearing in his court. But, so too, there was no arrear in the other branches of the court. So was it with Sir John Leach, a judge who could not be named without commending the diligence with which he discharged his duties; nor was there any arrear at that time before his right hon, and learned Friend, the Vice-Chancellor. The consequence was, as might have been expected from the removal of the obstructions, there was an increase in the number of bills filed, but that did not last; the removal of the obstruction caused a momentary rush of business, but there was not a constant stream; in a few months the usual number of bills alone were filed. So now, again, there was a rush, which his noble and learned Friend estimated at 30 per cent, but it was only 25 per cent., and he did not think that this was likely to continue; 15 per cent. appeared to him to be the utmost extent of the permanent increase that would arise. Yet, even an increase of 25 per cent. would not justify the appointment of judges which virtually doubled the judicial power of the court. It was increasing the judicial power eight times more than the occasion required. With respect to the particular measure then before their Lordships, he thought that many of the objections taken to the present system were inherent or unavoidable. He did not, agree in thinking that there would be no evil in having judges sitting in an appellate court only; he was sure that all experience in England was in favour of judges not being confined to an appellate jurisdiction, but sitting also in courts of the first instance, although he was aware that the case was different in other countries, and particularly in the

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Court of Cassation in France, where the law was well administered. As to the judicial power of the Privy Council, the want of a permanent head as his noble and learned Friend stated was an evil; at the same time it was true, as the noble and learned Lord said, that this was more apparent than real. His noble Friend (Lord Campbell), was mistaken in supposing that he (Lord Brougham) as the senior judge present presided. No one presided in this court; but, properly speaking, each judge took a cause in rotation, which had been productive of an admirable effect, for it ensured the full attention of each of the learned persons, it prevented the three judges from throwing the whole work on the president, and it had proved satisfactory to the suitors both here and in the colonies. The want of a bar had been also made a point of objection by his noble and learned Friend; but he was much afraid that no change in the constitution of the appellate tribunal would ever remedy this defect. For suppose that according to the plan proposed they were sitting here upon appeal causes from Scotland, and other places in the United Kingdom, and that the same court should also sit upon appeals front the Court of Admiralty and the Consistorial Court, one bar would be found to attend only to one branch, and the other bar would only attend when the House should be sitting upon the other class of cases, and so of colonial and Indian appeals. Now as to the appellate business being sufficient to occupy a full court nearly the entire year, he found, upon looking into the number of days which the judicial committee of the Privy Council sat, that not above forty days was the average number of their sitting; and it would appear, from the returns which had been made to this House, that that number of days was perfectly sufficient to transact all the business, because there were absolutely no arrears in that court. The returns before the House showed that, even including appeals from the East Indies, there were only eight or nine remaining, of which one had been part heard, another had only been set down in February, and a third about the same time; so that there were only six cases to hear, and of these five were from native courts of India, which was a new branch of business. Formerly there were Indian native appeals of thirty or thirty-five years' standing when the judicial committee began; that heavy weight of
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arrears had been got rid of. The other causes standing for hearing were as follows:— From the Supreme Courts of India one; from the Ecclesiastical Courts, three; from the Admiralty Court, none; and from all the colonies in the East, the Cape, Australia, the West-Indies, and North-America, not one single cause remained to be heard. Therefore, he said, there was not any arrear at all. It followed then that forty days in the year was quite sufficient to enable the judicial committee of the Privy Council to transact all its business, and more than sufficient, for this number had sufficed to work off the arrears also. And forty days thus being the outside required for performing the whole appellate business of the Privy Council, there remained for consideration the number of days necessary for carrying on the jurisdiction of the House of Peers. [The Lord Chancellor, Sixteen days in the month.] Surely his noble Friend was mistaken, they did not sit four days in each week. He thought that three days in each week was the average number of their sittings. It was a question between seventy and eighty. He would take it lat the highest. This would make the number of sittings amount to about eighty, to which, if they added the forty days' sittings of the judicial committee of the Privy Council, they would make the whole number amount to 120 days for the sittings of both tribunals throughout the year. Now this would not occupy any one set of judges; they would have only work for twenty weeks in the year. His noble and learned Friend had observed that there was a very great objection to a judge holding high judicial functions being removable. He agreed with him that it would be better, if possible, to remedy this evil, but, notwithstanding this objection upon the part of his noble and learned Friend, the highest judge of all, by his own plan, would be removable. The Lord Chancellor would, of course, preside as the highest judge, and would, of course, be liable to removal. Another objection had been taken to this judicial committee, and that was, that the attendance was voluntary. But what was the attendance of the court which his noble and learned Friend proposed by his plan? Why, it was proposed to make the attendance voluntary also; so that the proposition of his noble and learned Friend was itself ex-

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posed to those two great objections which he complained of, and made the main ground of bringing it forward—namely, a judge removable and the attendance voluntary. They found, after all that had been said upon the matter, that in practice the new tribunals had worked so well for the last nine years as to give the greatest satisfaction to suitors both in the colonies and elsewhere; and not only to have no arrear of business on hand, but to have actually got rid of all the arrears which had been previously allowed to accumulate, as well as to have dispatched all the subsequently accruing business from various quarters of the world. Though, then, there might be some objection to the constitution of the tribunal, he nevertheless thought that those objections were more in theory than practice; for, undoubtedly, the system had worked extremely well in practice. There was a very great difficulty in forming what might be called a good appellate tribunal, and that argument with respect to this difficulty derived greater force from the failure of all those plans which had been heretofore tried upon the subject. First, the plan which had been proposed by his noble and learned Friend near him (Lord Cottenham) had been found very objectionable. The plan which had been proposed by the present Lord Chancellor of Ireland was also found extremely unacceptable to those persons to whom it had been submitted. The plan which he (Lord Brougham) had brought forward upon the subject for transferring the appeals from this House to the Privy Council had met with no greater favour, and after the failure of all those plans, his noble and learned Friend (Lord Campbell) now proposed his measure in the shape of three bills. If he were to risk a prophecy upon the present plan, he would say that his noble and learned Friend's measure was very likely to fail also. He would not say that it would be likely to fail if it were allowed to pass into a law—he did not mean to convey this meaning, that if this plan were brought to the test of experience it would not work well. He did not mean to go so far as that. He could not carry his vision to that extent, because he could not see that it was very likely the noble and learned Lord's plan would ever arrive at that stage which would enable any person to say whether the measure had failed in its practical operation or not.
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He feared that the measure of his noble and learned Friend would not have the fate of the measure of his other noble and learned Friend, (Lord Cottenham) who had, with the aid of his noble Friend on the Woolsack, succeeded in making his measure the law of the land. That measure had succeeded so well that it not only answered his expectations, but greatly exceeded them. It had more than verified his fears, for it had defeated its own object by its excessive success. With respect to having one appellate jurisdiction, instead of two, the danger to be apprehended was, their having conflicting decisions—not upon matters of fact, but upon matters of law. If they had two tribunals in the last resort, neither having any jurisdiction over the other, but both being supreme, they certainly ran the hazard of having conflicting decisions. That this had not happened in former times proved nothing; for then the decisions of the Privy Council possessed not the importance now attached to them since the new jurisdiction. Nevertheless, this was to be taken into account, that though each of those courts was so far supreme that one could not interfere with the decisions of the other, still the decisions of the one came to be authority in the other, and were so cited. So far, therefore, this had a tendency to keep the courts together more or less. He thought a remedy might be found for that evil, for evil, indeed, it would be, if it did exist—the greatest evil that could possibly exist in the jurisprudence of any country, for, as it had been well said, the greatest of all slavery was that of a vague and uncertain law. Upon the whole he should, before he finally made up his mind upon the plans of his noble and learned Friend, wish to have an opportunity of examining more narrowly their details. As he was at present advised, he was inclined to think that many of the evils which his noble and learned Friend (Lord Campbell) complained of would be found more in theory than practically existing. At any rate, he was quite certain that some of those evils which were real were inevitable, and necessary to any such system of jurisprudence as at present existed.
Lord Campbellsaid, he did not mean then to prolong the discussion, as he thought it might take place more advan-

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tageously on the second reading of the bills. But he was anxious to free himself from any purposed discourtesy, in not having more fully communicated his scheme to his noble and learned Friends. He had publicly announced in the House his intention to bring the subject forward, and it was quite familiar to all his noble and learned Friends, who had each a scheme of his own. Notwithstanding the objections started, he trusted the necessity would be seen, for having only one Court of Appeal in the last resort, and that all the rest would be approved of, as necessarily following. He must just notice a remark of his noble and learned Friend on the Woolsack, indicating, that he had prepared and brought forward these bills merely pour écarter l'ennui. He begged leave to remind the House, that law reform was not new to him; that in his busiest time, he had sent up from the Commons, various bills for the improvement of the law, which had met the approbation of their Lordships, and were now to be found in the statute-book. He hoped he knew, as well as his noble and learned Friend, how to employ his leisure for the benefit of his country. He was glad to find, that his noble and learned Friend who sat near him (Lord Brougham) kept his mind open to consider the merits of the scheme, and he could not but hope, that the more it was considered and understood, the more it would be approved of and supported.
Lord Broughammust set his noble and learned Friend on the Woolsack, right as to the noble Mover of these bills having brought them forward from want of other occupation. No man in the profession had ever laboured harder in reforming the law than he (Lord Campbell) had done. He (Lord Brougham) should be most ungrateful, were he ever to forget the valuable services rendered by him when most fully occupied at the Bar, he (Lord Campbell) had been chairman of the real property commissions (one of the two Commissions issued by the Government in consequence of his motion in 1828), and to his (Lord Campbell's) labours, and those of the other able and learned Commissioners, the country was mainly indebted for those bills carried through Parliament in 1833, by his noble Friend (Lord Lyndhurst) and himself. The Will Bill of 1837, came from the same commission, and it had been altered in this
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House so as to be made word for word as the commission carried it.
Bills severally read a first time.
Adjourned.