THE JUDICIAL PROCEEDINGS OF THE HOUSE.

HL Deb 06 August 1850 vol 113 cc841-50

LORD BROUGHAM

My Lords, I have already stated to your Lordships, that having heard that a violent attack—and slanderous as it is violent—has been made on the judicial proceedings of this House, I felt that it would be my duty to bring that attack under your notice. I should not have mentioned the subject to your Lordships before I read the articles in question, had I not had implicit confidence in the accuracy of the three noble friends who had read them and given me a description of their contents. I have since read the publication to which they referred me, and I now find that the description of it given to me falls considerably short of the truth, and that a more unjustifiable, and I will even add, a more indecent attack on any court of justice, I have never seen in the whole course of my experience. I beg, my Lords, to preface what I am now going to urge with the proposition that it is one thing to comment even with levity, violence, and scurrility on the proceedings of this House in its political, ministerial, or legislative capacity, and that it is another thing so to comment on its proceedings when it sits in its capacity as a high court of justice. My Lords, whatever brings the administration of justice into contempt with the people, is an injury to the Government, and a serious evil to the administration of justice itself. And surely, my Lords, it cannot be said that the evil is diminished by the consideration that the court assailed and to be brought into public contempt is the House of Lords, the high court of appeal from all the other tribunals of the country. Such an assault upon the administration of justice in the Court of Queen's Bench, in the Court of Common Pleas, in the Court of Exchequer, or in the Court of Chancery, would be considered a high contempt, and would subject those who perpetrated such an offence to severe and condign punishment. That Court which sits in judgment over the Court of Queen's Bench, the Court of Common Pleas, the Court of Exchequer, and the Court of Chancery, ought to receive the same protection which those courts have by their own intrinsic power: they have undoubtedly the power, which they occasionally exercise, of committing to prison and of finding all who are wilfully guilty of contempt. Having said thus much, my Lords, I now proceed to mention that I have been sitting for the last six or seven weeks in the administration of justice in your appellate jurisdiction, assisted occasionally by other Peers, not law Lords; but of law Lords, I was the only one who has been able to attend. I undertook—I voluntarily undertook—this duty. The ignorance of the party who put this in the newspaper—in some respects the mere ignorance, but in others the ignorance combined with falsehood and malignity—is inconceivable. That person says, that this has only taken place since my noble and learned Friend on the woolsack accepted the Great Seal. Why, it took place long before. I was sitting as the only law Lord during the whole time that the Great Seal was in commission; but on hearing that there were heavy arrears of causes in his own court, when my noble and learned Friend accepted the Great Seal, and that none of the appeals entered last Session had been disposed of this Session by this House, I felt it to be my bounden duty to aid your Lordships in your judicial capacity in getting rid of the arrears before you, and also to relieve the noble and learned Lord on the woolsack. I sat, my Lords, as a law Lord in your judicial business. I have heard causes of as difficult and of as heavy a description as ever came before you. I heard two cases, each of which lasted four days, during sittings continued from ten o'clock in the morning till five in the afternoon—I say till five in the afternoon, at which hour your Lordships meet in your political capacity. For it is a very important thing to the parties, if you rise in appeals at four o'clock. What is the consequence of your Lordships adjourning at four o'clock till ten the next morning, when by sitting for half an hour or an hour longer you can finish the case at that hearing? Why, if you adjourn till the next day, all the counsel in the case, it may be four, five, six, or seven in number, have to he refreshed over again, all the fees of the House are to be paid over again, and all the expense of the solicitors' bills is to be incurred, amounting, it maybe, to 200l. or 300l. I save all this, my Lords, by sitting half an hour or three-quarters of an hour longer every day. Now, to all the causes which I have heard I have given the most laborious and deliberate attention; and my sincere belief is that the learned counsel in those cases will admit that I also gave them a most patient and impartial attention. Contrary to the course taken by other Judges in this House, I never once stopped a cause on the mere showing of the appellant, although I may have occasionally felt that the decree of the court below was right, and that there was no change whatever for the appellant; for I have always held, that in a court of last resort, where the most serious injury might be done—an injury only to be set right in the case of a slip or miscarriage by an Act of Parliament—it is better to hear both sides out, and to allow the appellant to have his reply. I have sat as many as five or six days in the week, having sat on Wednesdays and Saturdays for three weeks, contrary to the uniform practice of the House; but my great object was to cut down the arrears, so as to get rid of them before we parted for the holydays. My Lords, I have succeeded in that object. I heard last Saturday the last of the causes in arrear—all, save one, which by some accident dropped from the paper—but even that cause, which turns on the interpretation of a will, stands for hearing to-morrow. I have thus succeeded in disposing of the causes in arrear, and arrears at present there are positively none. I have left no hearing, and, what is more, I have left no decision in arrear. I have moved your Lordships to give judgment in every cause which I have heard. This I consider to be of great importance. I hope that my noble and learned Friend on the woolsack will forgive me if, with my experience in this court, which is much longer than any which he can have had at present, although I hope that his experience will yet extend far beyond mine—I hope, I say, that my noble and learned Friend will forgive me if I urge on him that the very worst thing that a Judge can do is to fall into the perilous habit of postponing judgment for too long an interval between the time of hearing and that of decision. Hearing arguments day after day when you do not intend to give your judgment till six months afterwards, not only gives you the habit of not applying your mind closely to the arguments; but the practice has also this other bad effect, that when you prepare your judgment in the long vacation, and pronounce it some time before Christmas, you are then exceedingly apt to forget circumstances of material importance in the case, the effect of the argument is effaced from your mind, and the parties find, that though they have in- curred the expense and trouble of having had the points in dispute argued by counsel, you (the Judge) would have been just as competent to decide them if you had read all the papers, seen all the notes, and heard no counsel whatever. I therefore recommend to my noble and learned Friend on the woolsack, after hearing counsel, to let as little time as possible elapse before he gives his judgment. I have given judgment, my Lords, in all the cases save one which I have heard during the present Session. I will add one word more. Four of the cases I have heard have been in reversal, all the others in affirmance of the decrees of the courts below. But in every case, whether in reversal or whether in affirmance, with one exception where the putting off the judgment would have been the affectation of seeing difficulty and doubt where difficulty and doubt there were none, I have postponed my judgment for two or three days, and sometimes for a week, in order to afford ample time thoroughly to consider the arguments in conjunction with my own notes of the case, and to consult statutes, authorities, and text-books; and I will venture to say that even in cases where I have been under the necessity of reversing the decision of the court below, the united opinion of the profession, not excluding those members of the bar against whose arguments I decided, is in favour of the judgments which I have delivered. It does not become me in my judicial capacity to say what opinion the bar have of the satisfactory or unsatisfactory conduct of the judicial business of this House during these six or seven weeks; but I am confident that the decisions which I then gave will be found to produce satisfaction. I am now, my Lords, about to show you what the attack is of which I complain. I will not read to you the ribaldry of the article at length, nor notice the general attacks on my character, which I assure you that I despise. First of all, it is said that such a thing has never been heard of as a single law Lord, who is not a Judge, sitting by himself to hear appeals, whilst the Chancellor was at Lincoln's Inn; never, until the appointment of my noble and learned Friend to the high office of Lord Chancellor. Never heard of? Why, it has been heard of not only this Session, whilst the Lords Commissioners were sitting at Westminster, but it was heard of so long back as the Session of 1835, when I sat and heard my noble and learned Friend, now on the woolsack, then at the bar, arguing one case for seventeen hours. I admit that I did not on that occasion sit at the centre of the table during the whole time, because an Irish demagogue, who chose to fix a quarrel on me for my official and Ministerial conduct, threatened the Government of the day with his high displeasure in case it allowed me to appear to decide the cases in the House of Lords. So my noble Friend behind me (the Earl of Shaftesbury), at the instigation of the Government, acted on, to its own disgrace, by the Irish demagogue, was compelled to come down, and to sit at the table, and to appear to decide the cases which came before us. I was meanwhile sitting in my place as a Peer, with my desk before me, and the only result of that compulsory movement was that the counsel were compelled to turn, with their necks awry, to address me, who was sitting on this side of the House—and I hope that my noble and learned Friend on the woolsack is not stiil suffering from the twist in the neck which he got upon that occasion. I nevertheless still continued to decide causes, although my noble Friend, Lord Shaftesbury, came down to preside at the table, until the end of that long, very long, Session. It is then said that only Judges should sit here, and that till the time of the present Lord Chancellor that was always the practice. Not so, my Lords; for during the last time my noble and learned Friend (Lord Lyndhurst) held the Great Seal, my noble and learned Friends, Lord Cottenham and Lord Campbell, and myself, had sate, in turn, three times every week, and had decided long causes, sometimes in conjunction and sometimes separately. This, my Lords, is the absolute and gross ignorance which presides over this newspaper attack. But this is not the worst part of its offence. I stated to your Lordships the patience with which I listened to every case which came before me; and I challenge all who were present, be they peers, suitors, advocates, or solicitors, to deny the patience with which I went through every case, and the deliberation with which all our proceedings were regulated. There is this passage—"The number of cases knocked off in the Lords"—as if some one had bragged of the precipitate haste with which cases had been decided—I need scarcely tell your Lordships that I never used so vulgar and low-bred an expression:— The number of cases 'knocked off' in the Lords has been considerable; but whether they have been gravely and attentively heard, maturely considered, and satisfactorily disposed of, is a question which will not be agreeably answered on inquiry amongst the able men who, for six weeks past, have been pleading at the bar of the House of Lords. And then comes more stupid ribaldry as to the haste with which causes had been knocked off, and as to my motives in sitting as Judge in the House of Lords. There is only one other part of this trash with which I will trouble your Lordships, and it is this:— His (the Lord Chancellor's) bar warned the Lord Chancellor that the arrangement he had made for Lord Brougham transacting the appellate business of the Lords for the remainder of the Session would not work well, and it has not. Here, my Lords, is a fact stated on which I gladly join issue with this slanderer. "The bar remonstrated against my sitting here as Judge." Whether my transacting the appellate business of the House of Lords worked well, or not, is not for me to decide; I will leave that to the profession and the public; but I assert that this is not only not true, but that there is not a shadow of truth for the assertion that the bar remonstrated against my acting as a Judge. I say that no remonstrance was made against me—I say that no objection was offered to me by the bar, and I further add that a noble and learned Friend of mine asked the Lord Chancellor to come down to the House, as he was acquainted with the facts of a particular case which was to come before us, but that he thought it was not a reasonable request—but that has nothing to do with the case now before us. In short, this paragraph is, from beginning to end, a gross departure from truth. I say that no Court can suffer such false libellous slanders on its proceedings to pass unnoticed, and, for this reason—a Court which permits such slanders is supposed to admit their truth. If I could not have laid my finger on this article, if I could not have brought it in this manner to the world that my sitting to assist your Lordships in your judicial capacity this Session had been met by a remonstrance from the bar, no remonstrance, even from the bar, would prevent me at any time from performing that which I felt to be my duty to this House and to the country; but, my Lords, I should regret indeed if now, for the first time, and after a long professional career, and after twenty years of judicial experience, I had afforded grounds for any such remonstrance betokening on the part of the bar, a want of confidence in my learning and my honour.

The LORD CHANCELLOR

My Lords, I regret exceedingly the attack which has been made on my noble and learned Friend; for, beyond a doubt, he has rendered great and good service to the country this Session by disposing of the appeals. When I bad the honour of receiving the Great Seal, there was a great arrear of cases in this House, and also in the Court of Chancery, arising not only from the unfortunate illness of my noble and learned Friend, Lord Cottenham, but added to in a very great degree by the unfortunate illness which happened at the same time to that extremely valuable Judge the Vice-Chancellor of England, and the illness of Vice-Chancellor Wigram. The illness of those two learned personages contributed largely to that arrear, because the causes proposed to be heard, and those which had been partially heard before them, could not be heard by any other Judge in Chancery save the Lord Chancellor. Therefore, having to hear and decide not only the causes which came before the Court of Chancery in its ordinary practice, and of which there was a considerable arrear; but the causes which bad been so partly heard by those two learned Judges, of necessity the arrears continued and increased; and, with my attention divided—sometimes having to preside in your Lordships' House, and sometimes in the Court of Chancery, no effort of mine could keep them down; and I hope I need not assure your Lordships that I should have been most willing to use every effort to serve the public by decreasing this arrear, or to concur in any arrangement by which that object might have been effected, and the accumulation of further arrears prevented. But though I sought no assistance, my noble and learned Friend, in his zeal for the public service, was good enough to undertake to hear and decide upon the appeals in this House, and so leave me more at liberty to deal with the business of the Court of Chancery. With regard to the feeling of the bar, I have had but little communication with them; but from what I know, I believe there is not the slightest foundation for saying that any remonstrance had ever been made by the bar against that arrangement. If there had, and I had been informed of it, I should immediately have communicated with my noble and learned Friend, and have asked your Lordships to consider what course it became you to pursue, in order to dispose of the arrears under such circumstances. I believe generally that the profession is desirous that the person who holds the Great Seal should preside over the judicial business in this House. But be that as it may, in reference to the arrangement in question, I have bad communication with but one member of the bar since I heard of this attack upon my noble and learned Friend—that person is one who attends very much in your Lordships' House, and is engaged in most of the appeals that come before you—and from that learned person I learned that the manner in which my noble and learned Friend has discharged the duty he had undertaken, and the judgments he has pronounced, had given great satisfaction to him, and he believed to every one of his learned brethren of the profession, as well as to your Lordships and the public. I believe that the attacks to which my noble and learned Friend has called your attention, originated in some private and malicious motives. Undoubtedly they were not directed to the advantage of the public, and not dictated by the conviction that they were true. It is quite true, as my noble and learned Friend has said, that the most patient attention and deliberation have been given by my noble and learned Friend to every case which has come before him, and that be has been mainly instrumental in bringing to a conclusion and giving judgment on the part of your Lordships in several causes of vast importance; and I have now learned with no less astonishment than gratification, that he has been able to pronounce judgment in all cases before your Lordships. I regret the attacks which have been made upon my noble and learned Friend; but I can hardly think that so far as my noble and learned Friend was individually concerned, they are at all worthy of his notice. And with regard to the House of Lords in its judicial capacity, this House, my Lords, stands far too high for it to be supposed for a moment that by such means the confidence of the public in it can be in the least degree diminished. My noble and learned Friend has presided in your Lordships House, and in Courts of Law and Equity, too long for attacks of this nature to be of the slightest importance to him personally; but that circumstance by no means lessens their indecency and impropriety; and if they are repeated, it may perhaps be incumbent on your Lordships to take notice of them, because in that case, if they are allowed to pass unnoticed, they may obtain credence; but isolated attacks, such as that to which the noble and learned Lord has called attention, pass off innocuously, and are not worth notice. My noble and learned Friend has done good service in the duty he has undertaken, and so successfully performed, and I think he is entitled to the gratitude of the public and of your Lordships for having placed the House of Lords in the position that no arrears of causes will remain undecided at the close of the Session. I can only say further, that I hope next Session I shall be able to discharge the duty as satisfactorily as my noble and learned Friend has done.

The DUKE of WELLINGTON

My Lords, having been a Member of various Administrations for many years now past, and having been often sensible of the great inconvenience resulting from the accumulation of arrears in the bearing and decision of judicial appeals before this House, I cannot but be sensible of the great obligations which the House is under to my noble and learned Friend, for the great activity which he has displayed, and for the great pains which he has taken in presiding over, in hearing, and in deciding on the existing appeals, and in keeping that branch of our judicial business in such a state as will enable us to bring it to a conclusion at the end of the present Session. My Lords, I concur in the feeling of disapprobation of these foul libels on the administration of justice in this House, which has been so well expressed by the noble and learned Lord on the woolsack; for observe, my Lords, these foul libels are attacks on the administration of justice in this House, and not on the administration of justice by my noble and learned Friend. I implore him not to discontinue his exertions in the public cause from any feeling of resentment at such attacks. This House is fully sensible of the great services which he has already rendered it, and feels the utmost confidence in the advice which he offers to it for the formation of its decisions—for I beg to remind you that all my noble and learned Friend does is to give you his advice; it is for you to decide upon it. I am much mistaken if there be not many noble Lords in this House fully capable of discerning whether that advice is right or wrong. I hope that my noble and learned Friend will not be deterred by attacks like these from continuing his attendance at our judicial proceedings.

The MARQUESS of LANSDOWNE

en- tirely concurred in the sense of obligation which the House owed to all the noble and learned Lords, and especially to his noble and learned Friend (Lord Brougham), for the time, talents, and exertions which they devoted to the sustainment of the impartiality, dignity, and character of the judgments of the House. Unacquainted as he was with the article which had caused his noble and learned Friend such pain, and with the merits of the various causes which he had decided this Session, he felt still a deep conviction that the judgments pronounced before the Members of that House, who, as the noble Duke had well observed, were competent enough to discover any errors in their proceedings, must, until those errors were pointed out, he assumed to be correct, and must command the attention and respect of the public. He was sure that the conduct of his noble and learned Friend enjoyed the full confidence of the public, for whoso benefit, as well as that of the House, the noble and learned Lord had devoted so much time and attention.