LORD BROUGHAMsaid, that in moving for returns of the cases of appeal to their Lordships' House under its appellate jurisdiction, he wished to take the opportunity of making a few observations regarding the hearing of appeals from the courts in Scotland. He had been represented last Session as having expressed his opinion that their Lordships should have the assistance of one or more Scotch Judges, or of an assessor from these Courts, in hearing appeals from Scotland. Now, the opinion which he had expressed was quite the reverse of that, for he considered that the suggestion, which was very likely to be made in consequence of the calling in Equity Judges to assist the House on English cases, would be attended with difficulties that were almost insuperable as 193 regarded these forms in Scotland. The Faculty of Advocates in Edinburgh had sent up a part of their body on a former occasion to confer with himself and some of his noble and learned friends upon the subject. He had entered into correspondence with them, having left town before their arrival; and the result of their communications had been, so far as his own opinion was concerned, that the difficulties of the question were not perhaps wholly insurmountable, and that some means might by possibility be devised to remove the anomaly of the present arrangements. He could go no further than this. At all events, every one must feel that those difficulties were great enough to make the House pause before it effected any important change in the appellate jurisdiction, and that they were bound to apply every relief and remedy that could be suggested which might appear likely to lessen the mischief complained of. Without going into the entire question, he was about to suggest to their Lordships and to his noble and learned Friend (the Lord Chancellor) what he thought would be a very important improvement in their mode of conducting the appellate business, which he would venture to say—and he spoke on the strength of communications he had had with certain of the heads of the Courts in Scotland—would have a most valuable effect in removing the difficulties of the case. It was simply that they should take the Scotch appeals together at some period of the Session, and he should say, at that period of the Session which was most convenient to the Scotch practitioners. There were two months of recess in the Scotch courts, commencing in March and ending in May. Why, then, should not their Lordships take these two months for the Scotch appeals? The suitors in England and in Ireland would have no right to complain of such an arrangement, because they would gain advantage by having the first part of the Session devoted entirely to their business; and if there were any special case requiring the immediate interference of the House, the Scotch appeals might be discontinued for a day or two. He thought it was of great importance that they should take the Scotch appeals continuously, which would be the course most convenient for Scotch practitioners and suitors, and would also be the best for their Lordships themselves, because it would procure for them the assistance and aid of Scotch lawyers. It was of essential im 194 portance, too, that cases should be heard de die in diem, without any interval or adjournment.
The LORD CHANCELLORsaid, that undoubtedly there was considerable inconvenience and anomaly connected with the hearing of Scotch cases in their Lordships' House: but he was not aware that any different course from that now pursued had been proposed by Scotch practitioners. However, he was now in communication with members of the legal profession in Scotland upon the subject, and he should give his best consideration to any changes which they might suggest in the present arrangements.
LORD BROUGHAMbegged to say a word or two in addition to what had already fallen from him. It was supposed that on a former occasion he had charged the noble Earl upon the cross benches (Earl Fitzwilliam) with having entertained the preposterous notion that the diminution of fees, or, in other words, of law taxes, would be prejudicial to the public interest, upon the ground that it would foster a mischievous spirit of litigation, and increase the amount of lawsuits. He had never brought so unjust an accusation against the noble Earl. He had, indeed, with, pain and astonishment, found his noble and learned Friend upon the woolsack expressing opinions, last night, in favour of that exploded heresy, and he had then taken occasion to say, what he would now repeat, that, with the exception of his noble and learned Friend, he did not think there had been a sensible man in the kingdom for the last seventy years, indeed never since the days and the earlier days of the illustrious Bentham, who had cherished ideas so utterly at variance with reason as to imagine it was an advantage to the community to have law expensive. He certainly never dreamt of alluding to the noble Earl. It was his noble and learned Friend upon the woolsack of whom he had spoken, and of him alone, lamenting that he should seem to continue an error so mischievous and so long since exploded.