Lords Sitting of 13 August 1855

MINUTES.
PUBLIC BILLS.—3a Consolidated Fund (Appropriation); Exchequer Bills (£7,000,000); Militia Pay.

JUDICIAL PROCEEDINGS OF THE HOUSE.
LORD ST. LEONARDSin moving for a return of appeals heard and disposed of by their Lordships during each of the last Five Sessions, begged to call their Lordships'
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attention to certain observations reported to have been made by the Solicitor General on Friday night in the other House of Parliament. That hon. and learned Gentleman was reported to have said—
"There was one point of great importance to which he might advert. Several instances had occurred in which the House of Lords, sitting as a court of appeal, had failed to discharge satisfactorily its proper functions. He quite admitted that scarcely anything was amended in the judicial institutions of the country until the recognition of the necessity of that Amendment had been passed on, so to speak, from father to son, and from generation to generation; and so it was with regard to the House of Lords. It was, therefore, doubtful, how long it might be before they got a tribunal in the last resort satisfactory in its constitution. The Members of the present tribunal felt themselves at liberty to attend or not attend as they pleased; with the exception of the Lord Chancellor, all the rest of the Court were mere volunteers; they attended a judicial sitting as they would a debate; they felt themselves at liberty to remain during the whole of the arguments or not; and the result was that this Court, the decisions of which ought to be as unalterable as the laws of the Medes and the Persians, was felt to be unsatisfactory in its constitution, and inferior to the lowest tribunal in what ought to be the accompaniments of a court of justice."
Now, with respect to the constitution of the judicial portion of that House, sitting as a court of appeal, he (Lord St. Leonards) had himself taken the liberty of discussing the matter in print, and, therefore, nothing could be more unbecoming than for him to object to any other person discussing the question of the judicial jurisdiction of the House. But that that jurisdiction was essential to its very existence there could not be the slightest doubt, and any attempt to lower or degrade it in the eyes of the people could not but be considered as most mischievous. Neither could any moment chosen for making such a charge be more inconvenient than the present, when Parliament was about to be prorogued, and when, therefore, no opportunity could be given of setting the public mind at rest upon the subject, either by rectifying what might be wrong, or by disabusing them of any misapprehensions they might be led to entertain for many months to come, during the whole of which time appellants who had been unsuccessful in their appeals to that House might conceive either that injustice had been done them, or that justice had been administered in a manner that would be disgraceful to the lowest court. If the intention of the hon. and learned Gentleman had been to object to the constitution of the Court as a court of appeal, or to suggest any means

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by which it could be improved, nobody could have complained; but, after considering the observations reported to have been made by the hon. and learned Gentleman in every light, he was forced to the conclusion that he had represented the administration of justice by the House—that was, by the noble Lord on the woolsack, assisted by the law Lords—as unsatisfactory; that noble and learned Lords entered or left the House during a legal argument as noble Lords might during a debate; and insinuated that which, if it were true, would be most disgraceful—namely, that they decided upon a man's rights without having heard the arguments which it was their duty to hear. Any person who would do that would be guilty of one of the grossest derelictions of duty. Certainly it had happened that his noble and learned Friend on the woolsack and himself had had the misfortune to disagree upon some occasions; but from the diversity of the human mind such a thing as disagreement must naturally occur. It had happened in the Court of Queen's Bench, it had happened in the Court of Common Pleas, and must always happen when the Judges were equal in number. Let them see where was the evil arising from it. There was the judgment of a Court of competent jurisdiction in the Court below, and there were two Judges in the Court of Appeal whose opinions were equal in point of authority to each other. One of them was of opinion that the judgment of the Court below should hold; and consequently there were then two Judges—the Judge in the Court below and one of the Judges in the Court of Appeal—against the Judge in the Court of Appeal who was opposed to the judgment of the Court below. It would appear from that, that the case had been decided properly in the Court below, and that one of the Judges of Appeal was of opinion that it had been rightly decided. No doubt it was extremely difficult to satisfy the public, and especially disappointed suitors, but would that difficulty be lessened by the constitution of any other tribunal? Their Lordships had a right to call upon the Judges of the land to assist the House in forming an opinion upon abstract points of law; and what happened?—that each of those Judges acting conscientiously, and not simply adopting any opinion that might be formed by one of them—deliberately and fairly formed his own opinion. I happened, as must occur in many cases that there was a great difference of opinion
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amongst them; and the same inconvenience would arise as to the satisfaction of the suitor, if these learned persons had to decide the case. Do what they would they could not get a tribunal that was totally free from objection. The law lord sitting in that House was bound to sit and hear the cases that came before him under the same sense of obligation as if he had sworn to do justice between the parties; therefore he was bound to listen to the arguments and address his mind to them, and show the bar, the public, and the disappointed suitor that the case had been decided there on points of fact and of law. As for himself, if the drift of the observations were intended for him, he could declare that he had honestly and conscientiously performed his duty during the whole time he had the honour of sitting in that House. He had never neglected a single case, or departed from the argument; if public business called him away for a time, he took care to have an accurate note taken of what took place in his absence: and he thought he might say that he had always shown by the observations he had made in his judgments, that he was perfectly master of the facts: and that, whether rightly or wrongly, he had endeavoured to fashion the law as far as he could, to execute justice, and to show parties that every pains had been taken to arrive at what might not be a proper, but what he certainly thought was a true decision. If these observations were not intended for him, he was at a loss to know to whom the complaint could apply, for he was certain it could not be intended to refer to his noble and learned Friend on the woolsack, than whom no one could more satisfactorily discharge his judicial duties; neither could it apply to his noble and learned Friend Lord Brougham, who had during the whole of the Session given the greatest attention to the performance of the legal business of the House. As respected himself, he denied that he had ever felt at liberty to go away and return at pleasure during the arguments of counsel, and afterwards to give a judicial decision upon the case.
LORD CAMPBELLhad witnessed, he must say with indignation, the attack that had been made on their Lordship's judicial jurisdiction by Her Majesty's Solicitor General. It was a most violent attack, having a direct tendency to bring their jurisdiction into disrepute, and it was astonishing that it should come from an officer

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of Her Majesty's Government. It was an attack upon the constituted authorities of the country, and upon a public functionary—for he (Lord Campbell) must say that it appeared to him to be an attack on his noble and learned Friend on the woolsack, who presided over their Lordships' proceedings when sitting as a Court of Appeal. It seemed to him, if the report were a just representation of what fell from the Solicitor General, that he thought that justice would never be satisfactorily administered in their Lordships' House until he (the Solicitor General) was presiding on the woolsack. Their judicial jurisdiction was of essential importance to their Lordships to enable them to preserve their importance and their usefulness, and any attack which called upon the country to consider their Lordships' judicial jurisdiction as unsatisfactory and mischievous must be an attack on the constitution of the country itself. The attack was totally unfounded. He had great experience in the usages of the House. For many years when at the Bar he was in almost every case that came from Scotland, and in many English cases; and, whether the decision was in his favour or against him, he was satisfied that the parties had had a fair hearing—that everything had been conducted as it ought to be—and that the losing party had no reason to be dissatisfied. Since he had had the honour of a seat in that House he had attended for nine years, at the hearing of every case that had been heard at their Lordships' bar, during a period which he supposed was included in the attack on the judicial functions of their Lordships. During four years of that period he held office under the Government, and was a member of the Cabinet; but still he continued to attend, from the time the House sat until it was adjourned, on the hearing of every case, and he had attended as assiduously and continuously, and as much under a sense of duty as he now attended as Lord Chief Justice in Her Majesty's Court of Queen's Bench, to the cases that came before that tribunal. There were then, four law Lords—Lords Lyndhurst, Brougham, Cottenham, and himself—and they devoted themselves to the business. Sometimes Lord Lyndhurst was not able to attend, and then his noble and learned Friend Lord Brougham, Lord Cottenham, and he (Lord Campbell) alternately presided; but during the whole of that time he believed the
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decisions of the House were satisfactory; and he bad no reason to suppose there was not now equal certainty of their being satisfactory, for he was sure that each law Lord felt as he (Lord Campbell) did, that he was under a solemn obligation to attend to the whole of the arguments and form a deliberate opinion upon the rights of the parties. He (Lord Campbell) deeply lamented that such an attack had been made; it seemed to him to be most inconsiderate and unfounded. The language used was to the effect that the decisions of their Lordships were discreditable, and that they were not as much to be respected, as those of the most inferior Court—the Court of Pie Poudre. If that be so, the public should with one voice rise up against them, and not submit to a jurisdiction so little entitled to public respect. But the public would not be so misled, and would look to what had been done under Lord Eldon, Lord Cottenham, Lord Lyndhurst, and his noble Friend below him (Lord St. Leonards). The present Lord Chancellor was equally entitled to the respect, of the public, who would see that those noble and learned Lords, assisted by the other law Lords, had done their duty in a satisfactory manner. He (Lord Campbell) thought that his noble and learned Friend (Lord, St. Leonards) was under a mistake, in saying that there was no difference between that House and the superior Courts, when the Judges were equally divided in opinion. In the superior Courts of Westminster Hall, if the Court were equally divided, no judgment could be given, and it was usual to obviate that difficulty by the junior Judge withdrawing. Then there was a majority on one side, and a writ of error or appeal was brought, and, the case was ultimately decided. In a Court of last resort this course could not be adopted, and the House of Lords acted upon the maxim, "semper presumitur contra negantem." It was said that, during the present session, only two law Lords were present at a hearing, and as they differed in opinion, the judgment below had been affirmed. A more satisfactory mode of proceeding might have been pursued, and he (Lord Campbell) would say in such an event, let the case be argued before all the Law Lords that could be summoned, and in that way a more satisfactory decision would be arrived at.
THE LORD CHANCELLORsaid, he agreed with the noble and learned Lord who had addressed the House as to the

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extreme importance of maintaining the judicial functions and jurisdiction of the House; and he believed that the same feeling would be entertained by all who had had the honour of filling the place he now occupied. He was also of the opinion expressed by his noble and learned Friend that the judicial business of the House had been very satisfactorily performed, and that it was well conducted. No doubt, in theory grave objections might be entertained to the constitution of any tribunal; but supposing that the representation were true, and the words attributed to the Solicitor General were actually uttered by him, he hardly considered them an attack upon himself so much as upon the judicial system of the House, and the mode in which justice had been administered. At the same time he should be wanting in his duty if, not conceiving it to be a personal attack, he shrank from expressing his entire concurrence in the opinion that, as an attack upon the administration of justice by the House it was entirely unfounded. The attack naturally divided itself into two heads; first, it was an attack upon the nature of the tribunal, which was a fair subject of canvass; and, secondly, upon the mode in which that tribunal, whether well or ill constituted, had performed its functions. With regard to the latter charge, what he collected from the passage quoted from the Solicitor General's speech, as reported, was that the proceedings in their Lordships' House were conducted by persons performing the functions of Judges who sometimes heard the whole, and sometimes only part of the arguments; that at all events they did not think it any part of their duty to hear the whole before they decided upon the case before them; and he summed up by saying that such a Court of Appeal was unsatisfactory in its constitution, and inferior to the lowest tribunal in what ought to be the accompaniments of a Court of Justice. Now, he would undertake to say that there was not the slightest foundation for such a statement, and he would appeal to those who were not law Lords to say whether there was the slightest ground for the assertion. Very often an argument lasted three or four days, and though a noble and learned Lord might be absent a few minutes occasionally, as happened in the Court of Queer's Bench, or in any other Court, and must necessarily happen, yet anything of importance would, from the nature of a
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legal argument, be dwelt upon and repented over and over again, there being generally two counsel on each side—and, if not repeated, which was most improbable, some colleague would be sure to inform a noble and learned Lord who might have been absent a short time of the point which had been taken. It was quite contrary to the fact that the noble and learned Lords were ready to give their decision without hearing the arguments. The case was really the other way, for Lord Brougham had been a little over-sensitive in refusing to take part in a decision because he did not hear every word of the argument. It would be the more inexcusable to express any decided opinion upon a case affecting the rights of individuals in that House without giving the fullest attention to all which could be advanced in the shape of argument, because any error they might fall into there could not be rectified by another Court. He could not believe that any one who had the smallest acquaintance with the House of Lords, sitting in its capacity of a legal tribunal, could charge any noble and learned Lord with political bias in giving his decision. With respect to the constitution of the House, he conceived that the keeping of the ultimate appeal from all the courts to their Lordships' House was of most essential importance. It was of the highest importance to have a tribunal as a Court of final appeal, and he was of opinion that the House of Lords was the best calculated, from its weight and authority, and from the fact that there must always exist in it certain persons who have raised themselves to eminence in connection with the law, to constitute that tribunal. As to politics or political differences entering into legal matters in that House, there was not even a suspicion of such a thing. With respect to the inconvenience that had arisen two or three times during the Session, in consequence of there being only two persons present to hear an appeal who were unable to agree, he could only observe, that on those occasions he had acted to the very best of his judgment; and it would be the greatest possible relief to him if, in case of such a contingency, any kind of umpire could be called in; but their lordships knew that, in the absence of such an umpire, the judgment of the Court below was left untouched. It would be obvious, also, that to create such an umpire would be a very bad solution of the question, because in

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reality, it would be vesting the power of that House as an ultimate Court of Appeal in the hands of a single person. Perhaps a better solution would be to determine that the ease should be reargued; but he thought the present mode of dealing with it was not such a mode as justified any one in terming their Lordships' House, as a court of justice, unsatisfactory, and inferior to the lowest tribunal. The principle at present acted upon was, that where their Lordships were equally divided no decision could be come to, and no reversal could, therefore, take place. That was a result which might constantly occur in any tribunal where the number of Judges was equal. He must say he deeply regretted that the language imputed to the Solicitor General should have been used, if in fact it was used, but he understood the expressions not as if they were used in the course of an argument at their Lordships' bar, but as being uttered in the heat of debate, and when there was nothing of a judicial nature going on. He had often heard his hon. and learned Friend express his opinion that the House of Lords was inadequate as a Court of final appeal, and he might have used language stronger than was necessary; but of this there could be no question, that neither their Lordships' conduct, such as it had hitherto been or would in future be, would justify such observations as are said to have been uttered.
Motion agreed to. Returns ordered.

UNIVERSITY OF OXFORD—PETITION.
LORD MONTEAGLE presented a petition from Sir Culling Eardly, that persons may have the benefit of the University without being forced to state that they are not members of the Established Church. The petitioner slates he had been a member of Oriel College, Oxford; that although he was a member of the Church of England, he entertained conscientious scruples with regard to the Thirty-nine Articles, and refused to sign them. He was, in consequence, not allowed to proceed to his degree, and his name struck off the college books. After the passing of the Oxford University Bill of last year, he applied to the Provost of Oriel to have his name replaced on the books and to be allowed to proceed to his degree. He was informed, in reply, that there were certain old statutes relating to heresy and schism
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which would prevent him; but that the statutes were in course of revision, and that the new statutes might not throw any obstacle in his way. After the new statutes were prepared, he was informed that he would be allowed to proceed to his degree, provided he declared himself to be extra ecclesiam Anglicanam; but that he could not be admitted as one intra ecclesiam Anglicanam unless he signed the Thirty-nine Articles. He declined to make any such declaration, as he did not consider himself a dissenter from the Church of England; and he now petitioned the House not to allow the college authorities at Oxford to impose a new test, in contravention of the Act of last Session. He would beg to call the attention of the noble Earl the head of the Oxford Commission (the Earl of Harrowby) to these circumstances.
THE LORD CHANCELLORfelt some difficulty in speaking upon the subject, upon account of his personal knowledge of the parties, but justice required him to state that from his intimate knowledge of the petitioner, it would be the greatest hardship in the world to require that gentleman to describe himself as extra ecclesiam Anglicanam. Certainly, if not signing the Thirty-nine Articles placed a person extra ecclesiam Anglicanam, then Sir C. Eardley was in that position; but their Lordships had had it from the highest authority—from the episcopal bench during the present Session—that such signature was not requisite. If to attend the service of the Church of England oftener than any other—to communicate according to the rites of that Church constituted a person intra ecclesiam Anglicanam, then he (the Lord Chancellor) could say, from his personal knowledge, that the petitioner was intra and not extra ecclesiam. The Act of last year would be a dead letter if all those who entertained conscientious doubts as to the propriety of some of the doctrines to be deduced from the Articles were to be excluded from the University. He had heard with much pain of the obstacles which had been thrown in the way of the petitioner, and thought it was like compelling a man to wear a cockade in his hat when the object of the law was to abolish the use of cockades altogether.
THE EARL OF HARROWBYwas rather embarrassed in speaking upon a subject which might come before him judicially as

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a member of the Oxford University Commission, but had no hesitation in saying, that on the first blush of the case, the required declaration was, at any rate, against the policy of the law. Whether it was against the letter of the law he would not then say. He feared, however, that the authorities at Oxford were inclined to take narrow rather than broad views of the law, and to wish to bind those who desired to adhere to the Church by their documents, while those who dissented were left to do as they pleased; that was against the policy of the law. There was a very large and important body of persons in this country who felt doubts upon some of the points set forth in the Thirty-nine Articles, but who had great scruples to calling themselves dissenters from the Church when they were not so, and whom it would be most injurious to the interests of the Church to compel to declare themselves to be dissenters.
LORD CAMPBELLhad no difficulty in saying the refusal of the Provost of Oriel was contrary to the letter, to the spirit, and to the policy of the Act of Parliament. He had no right to say the applicant was without the Anglican Church because at one period of his life he had expressed doubts as to some of the Thirty-nine Articles. Their Lordships were aware that one of the Articles declared that judicial oaths might be taken and were consistent with Scripture. Some members of the Church of England applied to be relieved from taking them, and on that occasion, that most distinguished prelate, the Bishop of London, said a man might be bonâ fide and truly a member of the Church of England, and yet dissent from some of the Thirty-nine Articles. In his opinion, the Provost was in every way mistaken.
Petition to lie on the table.
House adjourned till to-morrow.