LORD BROUGHAMsaid, that, before their Lordships proceeded to the transaction of the business before them, he desired to state that a very incorrect representation had appeared in one of the daily papers of some judicial proceedings which had taken place in their Lordships' House. He had no complaint whatever to make of the paper in which had been published the article commenting on the proceedings in question, for the article was perfectly respectful towards that House, and even kind towards the law Lords; but some persons—probably some interested party—had made important misrepresentations of the facts, and had thus led to the insertion of a totally erroneous statement of what had actually occurred. It was stated that his noble and learned Friend upon the woolsack and Lord St. Leonards differed in opinion on a certain case; and that, while 489 the question was under deliberation, he (Lord Brougham) came in, and, although he had not heard the arguments, turned the balance in favour of the Lord Chancellor, the consequence being that the case was decided in accordance with the opinion of the noble and learned Lord. But this statement was altogether erroneous; for the fact was that he was absent from the House—and, indeed, he might say from the country—for three weeks before and for a fortnight after the 1st of May, the day on which those proceedings were represented to have occurred. It was clearly impossible, therefore, that he could have pursued any such course as had been attributed to him in the article to which he had alluded. The true state of the case was that, in consequence of the equality of the number on both sides—there being one law Lord on each side of the question—there was what some might regard as no decision whatever of that House; or, in other words, the appeal was dismissed, and the judgment of the Court below affirmed, which judgment was contrary to the opinion of the Lord Chancellor, and according to the views of his noble and learned Friend Lord St. Leonards, so that the practical effect was that the opinion of the latter noble and learned Lord prevailed. Under these circumstances, it was manifest that no statement could be more unlike the truth than that to which he had called the attention of their Lordships. He could only observe, in conclusion, that it was the invariable practice of the law Lords not to take part in the decision of any cause, unless they had been present at the argument.
LORD CAMPBELLadmitted that it was highly proper that the mistake of the writer of the article referred to by his noble and learned Friend should be corrected; but he hoped that it would never be thought a breach of privilege to comment, not only kindly, but stringently, and, if necessary, severely, on the proceedings of that House when acting as a court of justice.
THE LORD CHANCELLORobserved that the statement of his noble and learned Friend (Lord Brougham) was literally and perfectly correct; for he could testify that his noble and learned Friend had taken no part whatever either in the argument or the decision of the case in question. The argument commenced after he had left the country, and the decision took place before he had returned. It had been suggested that in cases where only two law Lords 490 attended, and where those two were of a different opinion, there should be a reference to a third; but he doubted whether that would be an advisable course to pursue, for the decision would then altogether rest with one arbiter, whereas, according to the present practice, when there was a difference between the two Lords who had tried the appeal, the judgment of the Court below was affirmed, and thus that opinion prevailed in favour of which there was the largest number of Judges.