§ THE EARL OF DERBY
My Lords; I am quite aware that I should be chargeable with the most unpardonable presumption if it could be supposed for a single moment that the Motion which I am about to submit to your Lordships would in the least degree interfere with or prejudice that Motion of which my noble and learned Friend behind me (Lord Lyndhurst) has 1449 given notice of for a future day; and still more so, if it could be for an instant imagined that, in bringing forward this question, I was seeking to take out of the hands of my noble and learned Friend a subject upon which his authority and influence are—I will not say immeasurably superior to my own, for I have none—but which, with all deference to other noble and learned Lords in this House, I do not hesitate to say are superior to any man's, here or elsewhere, in dealing with this important question. The Committee for which I am about to move, if agreed to, so far from interfering with, will rather prepare the way for and facilitate the Motion of my noble and learned Friend, who will be in a position to deal with the question to much greater advantage after the subject shall have been considered in Committee. As I understand no opposition will be offered to my Motion, beyond the introduction of a few words proposed by the noble Lord President of the Council, I shall refrain from troubling your Lordships at any great length.
As to the appellate jurisdiction of your Lordships' House, I imagine it to be a representation of that jurisdiction which has been from the earliest times inherent in the Great Council of the Realm; and when, in process of time, various elements of that Council gradually fell away, the jurisdiction originally vested in the Great Council remained in that portion of it—the greater Barons—which now constitutes your Lordships' House. I am now speaking of the jurisdiction as to law. With regard to the jurisdiction in equity, that is of comparatively modern date, but this House has invariably exercised that jurisdiction, and ever since the memorable discussion between Lord Coke and Lord Chancellor Ellesmere, there has been no doubt but that that jurisdiction is also inherent in this House. It will, perhaps, rather shock some of your Lordships to hear me say, that, highly as I value this privilege, I do not consider its maintenance so absolutely essential for the fitting discharge of the other functions of this House as some appear to think it. I undoubtedly consider it a very high privilege and a very important one; and as regards the noble and learned Lords the law Members of this House, it unquestionably does rest on them a very high, a very important, and a very responsible jurisdiction. And even as to the House at large I am not prepared to say that that authority is not also vested in them, nor am I prepared to say that 1450 the semblance of that authority is not practically a source of power in public estimation, and one which I might regret to see the House deprived of. But of this I am quite certain, that if it were necessary to adopt an alternative between the maintenance of any privilege of the House, however important and valuable, on the one hand, and on the other a failure in the administration of justice towards any of Her Majesty's subjects, I am quite sure that not one of your Lordships would hesitate as to which alternative to adopt, but that you would all say, "Let justice be fairly and impartially administered, what-ever privileges this House may be called upon to abandon." But I do not pretend to decide whether it is or is not necessary to abandon that privilege, and all the observations which I have to offer to your Lordships proceed upon the assumption that it is desirable to maintain this privilege of the House. I may be permitted, before going further, to remind your Lordships that from the earliest times not only the Peers of the realm, but also the Judges of the land and other high functionaries, were summoned by writs of summons to assist in the discussions and deliberations of this House. What part they took in those discussions and deliberations—whether they were confined to those subjects which fell specially within their provinces, or which were specially delegated to them by a majority of the House—whether, whatever the subjects they had to discuss, they were called upon to deliberate or to determine, or both, is, I believe, a matter of considerable uncertainty. That their powers have been more restricted of late may be safely inferred from the difference which I am informed by excellent authority exists in the form of the writs now issued and that of the writs of former days. The writs issued to the Judges and other high functionaries—I believe that, beside the Judges—the Attorney General and the Solicitor General alone are now summoned—have this very important variation from the writs by which your Lordships are summoned to this House. Your Lordships are called upon to assist in advising and determining, but the Judges are called upon to attend to advise and assist; but the important words "to deliberate and determine" are omitted from their writs. Therefore I should rather infer that the practice in early times was the same as the practice in modern time, and that the Judges were only summoned to advise and 1451 assist, and not to vote and determine. My Lords, how is the present tribunal practically constituted? Technically, it is supposed that all causes are heard and decided by your Lordships' House; and it is owing to that fiction of the law that a circumstance often occurs which has not a very creditable appearance, and which attaches a stigma to your Lordships' House as a court of appellate jurisdiction. The fiction that the whole House are judges in cases of appeal renders it necessary that the same number of Peers should form a quorum when the House is sitting in its judicial character as is required when assembled in its legislatorial character; the consequence is, that if there should only be one or two noble and learned Lords present, it is necessary that certain lay Lords should also be present to make up the quorum to constitute a House. But none of those noble Lords ever think of interfering with the determination of the House as a court of appeal. The practice is, for the Lord Chancellor to move that your Lordships do assent to such and such a decision; but, in truth, none of the lay Lords ever affect to give their opinion upon the question before the House, or even to pay attention to the proceedings; they regard the whole case as one in which they have no sort of duty to exercise, or on which they have any opinion to pronounce. Whether the judicial character of your Lordships' House should be relieved of that appearance of impropriety I shall say a few words before I sit down. But, practically, the lay Lords are rather like the lay figures introduced into the painter's studio for the purpose of completing the judicial canvas, but they do not perform their parts in adding any grace or force to the tout ensemble of the whole. But before I come to consider the remedy to be applied, if any remedy be required, to the defects of the existing tribunal, it is necessary that I should consider what are the objections raised against the practice of this tribunal as it now exists. I beg at once to say that I do not concur in all of those objections; on the contrary, I believe some of them to be very exaggerated, and others to arise from misconception. I apprehend the objections to be seven in number. First, the small number of Judges; secondly, the attendance of those Judges not being compulsory; thirdly, that, not being compulsory, the number attending is uncertain; fourthly, the great chance of a failure of justice from the circumstances of the Judges being 1452 equally divided in opinion, when no judgment would be delivered; fifthly, the appeal being from a judge sitting in one capacity to the same individual sitting in another capacity; sixthly, the tribunal sits only half the year, the consequence of which is that for the remaining half justice is closed against the suitor; seventhly and lastly, in case of Scotch appeals it is no adequate tribunal by which they can be decided. I will proceed to consider these objections, but not exactly in the order in which I have stated them. First, as to the fact that for one half of the year the tribunal of the highest court of appeal is closed—this is an objection—if it be one—which is inseparable from the primary question, whether an appellate jurisdiction should be vested in the House of Lords or not? because, of course, if it be right that the House should possess that jurisdiction, then the tribunal can only sit while the House of Lords itself is sitting. Without at all undervaluing the principle that justice should be made accessible to every one, and that judgment should be carried into execution as soon as it is consistent with due deliberation and fair argument, I am not quite sure that in matters of appeal it is always right to give the greatest possible facilities; still less do I think it desirable to accelerate appeals as fast as possible; for, in the first place, the presumption must be in favour of the correctness of the judgment of the court which has already decided on the case; but we can imagine many cases in which an individual, having a decision adverse to himself, might, in the heat of the moment and in the irritation of defeat, lodge an appeal in the House of Lords, from which, if he had had three or four months' time coolly to consider what would be the probable consequence of that appeal, he might be induced to forego his purpose, and thereby save all parties from a great and vexatious expense, and relieve your Lordships' House from an accumulation of business. I think there is more force in the objection, so far as it is an objection, that in many cases an appeal is simply one from the decision of a judge sitting in one capacity to the same judge sitting in another capacity. I can imagine that the judicial mind, from long training and habit, may be equal to the task of hearing with perfect impartiality arguments against a judgment already delivered by himself, and may be capable of being induced, after such arguments, of giving a decision 1453 contrary to and in reversal of his first judgment; but I must say that this is a position at all events in which neither with regard to the Judge nor the suitors, is it desirable that a man should be placed; because if it does not actually interfere with, it is calculated to cast suspicion on the due administration of justice. I admit that this is a circumstance which can hardly occur in your Lordships' House, because the Lord Chancellor, who always presides here, has in very few cases any original jurisdiction. With regard to the other law Lords who attend appeals, they can from their very position have no original jurisdiction. Consequently, the appeal must be in most cases to an original judicature. There is, however, a case in which I think an appeal may place your Lordships in a not very favourable position, especially in the eyes of the public, in regard to the proper administration of justice. I mean where there is an appeal from the Vice Chancellor to the Lord Chancellor, who reverses the decision of the Vice Chancellor. An appeal is then made to the Lords against that reversal. Now, supposing there to be only two law Lords sitting in your Lordships' House, and they are divided in opinion, the judgment appealed against remains the decision of the case; and thus the Lord Chancellor, in fact, confirms his own former judgment. With regard to the objection of the possibility of there being a division of the court, and, therefore, a chance of a failure of justice—where the court (whether composed of few or many) are equally divided the result must be that they come to no decision at all. But, what is the result of their coming to no decision? If there be two against one, or five against three, the result is, it reverses the decision of the court below; but if they be equally divided the practical effect is this—that in a case of great intricacy and of great difficulty, upon which there are conflicting opinions, and the judicial mind is balanced, the decision will be left in the hands of the Judge of the inferior court; and the inference is, that he has not judged wrong, but that he has judged rightly. It is rather strange that in that most valuable Act, for which the country is indebted to my noble and learned Friend—I mean that which constituted the present Judicial Committee of the Privy Council—there is a provision, not that the quorum should be three, or five, or seven, but that it should not be less than four. Whether that was intentionally done or not, I know not, but 1454 such a quorum has the effect I have pointed out in this very case—namely, that of giving the balance to the court below in those instances where there is an equal number of Judges on either side in the court of appeal.
made an observation, in which he was understood to say that since that Act had passed there had been added to it another, in which it was provided that in certain cases the quorum might be three.
§ THE EARL OF DERBY
Another objection is, the smallness of the number of Judges, the uncertainty of the number in attendance, and that their attendance is not compulsory. With regard to the uncertainty of attendance, and the attendance not being compulsory, it is quite obvious that the remedy suggested by Her Majesty's Government, would not meet those objections; because the admission of a certain number of legal men to your Lordships' House, if admitted as Peers, would not diminish the chance of the smallness or the uncertainty of the number in attendance, because, being Peers of Parliament their attendance would not be more compulsory than it is now. But next an objection is taken to the very small number of Judges sitting as a Court of Appeal. Now, my Lords, I am not quite sure, however plausible this objection may be, whether it is founded on reason or good sense. The question, I think, is, who the Judges are, rather than how many they are, and, recollect who the Judges in this House are. The law Lords in this House consist first and principally of the Lord Chancellor; and the very fact of the Lord Chancellor having to preside over the judicial proceedings of this House, the highest Court in the empire, imposes upon—I will not say this, but every Government the necessity of placing that political office in the hands of the most eminent man they can find at the bar who concurs with them in political opinions. Now, happily, political opinions are so divided in this country that I do not think suitors in general will have any great cause to complain, either at this or at any other time, if the last appeal from the other high judicial authorities be vested in the ablest men to be found among one or other of the political parties on opposite sides of this House. But, besides the Lord Chancellor of the day, there is probably a man equally learned and distinguished, who has been Lord Chancellor under a preceding Government. At the 1455 present moment we are fortunate in having here at least five noble and learned Lords of very great eminence, four of whom have already filled the high and distinguished office of Lord Chancellor. With regard to my noble and learned Friend (Lord Lyndhurst), perhaps the highest authority of all, his venerable age may well excuse him from attendance upon the Court of Appeal. Another noble and learned Lord, the Lord Chief Justice, is also rarely able to attend, owing to his necessary absence in the discharge of his duties elsewhere; but at the present moment you have at least the assistance, in all cases of appeal, of the noble and learned Lord upon the woolsack, of the noble and learned Lord (Brougham), and of my noble and learned Friend behind me (Lord St. Leonards). Now, will you increase the weight of authority of such a tribunal by adding any number of Judges? I do not say it is positively undesirable to make any addition; but do you not run the risk, unless you bestow upon the subject the most careful consideration, of diminishing the authority by adding to the number of those learned persons? Suppose the noble and learned Lord upon the woolsack were sitting alone to decide upon an appeal from Sir W. P. Wood, or any of the eminent persons who practise in the Vice Chancellors' Courts—or suppose, rather, that the Court above were equally divided, and that two learned Lords were decidedly adverse to the judgment of the Court below—suppose that of the other two, one was a distinguished equity Judge, while the other (in a case involving a nice point in equity) was a person conversant only with the common law, not, perhaps, having been very eminent even in that; yet the effect of a Judge being present here would be to overrule the decision of two most eminent men—men best skilled in Chancery practice, and each of whom may have passed the woolsack. That would be a most unsatisfactory state of things, though at the same time I don't mean to say it may not be necessary to increase and enlarge the tribunal. If, however, you adopt such a course, you must next consider in what manner it may be done with the. least disadvantage to the constitution of this House, and with the greatest advantage to the tribunal itself. The first suggestion—that proceeding from Her Majesty's Government—though it did not turn exclusively on the defects of the House as a Court of Appeal, yet was one which evidently made the defects of the Court of Appeal, the 1456 mainstay of the argument for introducing into this House judicial Peers for life. Now, who are those judicial Peers to be? If they are men holding at the present moment high situations, the duties of their various offices may keep them from regular attendance and prevent them from giving this House such assistance as we desire; and, on the other hand, their attendance on this House may distract them from the performance of their duties in their proper offices. If, on the other hand, they are persons of less eminence, then, in the first place, you do not obtain larger attendance; you do not obtain compulsory attendance; and, at the same time, though you have the number of the Judges increased, you have the authority of the tribunal diminished, in consequence of the addition of men of inferior weight and standing. I doubt whether any such measure would satisfy the profession or the public, or—(which is of vastly greater importance)—would tend to the due and proper administration of justice. My noble and learned Friend at the table (Lord Campbell) suggested that there should be certain great offices which should carry with them a peerage for life. [Lord CAMPBELL: During office.] Such a peerage, like that borne by the right rev. Bench opposite, undoubtedly would not be open to many of the objections justly urged against the admission of non-hereditary Peers generally. No stigma could attach to the son for not inheriting an honour to which the father assumed only in right of his office. But I think there would be this objection to such a provision—namely, that it would ensure only a very imperfect addition to the composition of this House, though more especially regarding it as a Court of Appeal. With regard to the ordinary discussions carried on here, we all know the value of the authority of the Lord Chief Justice; but we also know that upon many occasions, in consequence of his other avocations (and the case would be the same with the Chief Justices of the other court and the Chief Baron of the Exchequer), we have not the advantage of his assistance. In cases of appeal, more especially, I believe the noble and learned Lord never sits. [Lord CAMPBELL: Rarely.] Then, if we are not to have Peers for life, assuming it is necessary to increase the number of the tribunal for the purpose of securing a larger and more regular attendance, we have the alternative of creating Peers for life (the objections to which I will not now enter into at large); the alternative of an official 1457 peerage, as suggested by the noble and learned Lord; and we have also the alternative of the possible addition of Judges, upon the principle and precedent introduced by the noble and learned Lord behind me (Lord Brougham) in the Judicial Committee of Privy Council. Upon what principle was the constitution of that Committee of Privy Council founded? Upon a most sound and wise principle—namely, that, with regard to questions affecting the Prerogative Court, the Vice Admiralty Courts abroad, the appeals from the Colonies, and appeals from India (in virtue of the power of the Crown to refer them as it might think fit,—and the extension of patents, the Committee of Privy Council, in whom previously as a body rested the right of deciding and judging upon those appeals, delegated, by the act of my noble and learned Friend, the sole and exclusive considerations of those questions to certain judicial and legal members of their own body, selected and named in the Act, to whom they intrusted, as a committee of their own body, the duty of examining into these cases, of hearing them, and reporting upon them to the Queen in Council, for whom the order founded upon that Report and the judgment proceeded. Now, recollect, that in order to secure the attendance of a quorum of four Members of the Judicial Committee of Privy Council, my noble and learned Friend thought it necessary to appoint no less than twelve or fourteen holders of distinguished offices who were Privy Councillors, besides two persons selected by Her Majesty, and also all persons, being Privy Councillors, who had filled in any previous time any of the offices in question; so that, in order to obtain this quorum of four, it was thought necessary to constitute a body from which the Judges might be selected, consisting of from twenty to twenty-four individuals. Now, my noble Friend opposite, in order to effect an improvement in the appellate jurisdiction of this House, does not, I trust, mean to create twenty or twenty-four more legal Peers for the purpose of gaining four more Judges. The result of any such step would be that, in the first place, as the attendance of these persons would not be compulsory, no guarantee would exist for a regular attendance in the Court of Appeal; and, in the next place, they would have the right to appear in other cases where they will not be wanted, and where their presence will not always be desirable. But how, then, are you to select 1458 these four Judges? Observe that the questions which come before the Judicial Committee of Privy Council are questions which proceed from comparatively inferior courts, from the Vice-Admiralty Courts abroad, the courts in the Colonies and in India. But in this high court of appeal the cases which have to be dealt with proceed not from inferior tribunals, but come in the nature of appeals from courts presided over by the most eminent persons in the kingdom possessed of the highest authority in the courts below—from the decisions of the Lord Chief Justice, of the Master of the Rolls, of the Vice Chancellors in equity, of those distinguished men who are constituted Judges in the Judicial Committee of the Privy Council, the appeal is to your Lordships' House as a supreme court; and, my Lords, when I consider the high authorities from whose decisions appeals are made, I think that it is a subject for most grave consideration how far we may weaken the authority—the high, the pre-eminent authority, of these noble Lords who now hear and decide, as the highest court, appeals from the inferior courts, if we increase the highest appellate Court from any but the highest courts in the Kingdom. It must not be supposed for a moment that at present the court of appeal of your Lordships' House is without the means of obtaining assistance; your Lordships have the power in all cases of calling for the advice and assistance of the learned Judges of the Courts of Common Law; but you have not, I believe, the same power of calling in the assistance of the equity Judges, unless they are also Privy Councillors. Now, my Lords, I believe that this state of things has arisen through accident. Up to a period not very remote, the Judges exercised a mixed jurisdiction in law and equity; but when the system of equity became more fully developed, the equity jurisdiction of the Courts of Common Law was transferred to the Vice Chancellors' Courts, and, as the Vice Chancellors are not included in the number of the Judges, we are not able to call upon them for assistance, but in cases of equity we are only at liberty to call for advice upon those who exercise the functions of a judge in the Courts of Common Law. I shall be corrected, my Lords, if I have made any mistake upon this subject, but I maintain that, in questions of common law, the House of Lords, sitting ns a court of appeal, has the assistance of the learned 1459 Judges, but that in equity cases it cannot command the assistance of the Vice Chancellors, unless they are Privy Councillors. Now, my Lords, if you are of opinion that our court of appeal requires strengthening, that it requires additions, that a greater number of persons would add to its efficiency, surely the obvious course of proceeding is to avail ourselves more largely of the advice of those whom the constitution and practice of Parliament point out as our legitimate assistants and advisers—I mean the Common Law Judges upon questions of common law, and the Vice Chancellors in questions of equity. Whether those learned persons should be admitted into our assembly for the purpose of assisting and advising only, whether the assistance of the whole should be required, and whether the Lord Chancellor should have the power of calling for their assistance and advice and of insisting upon their attendance, are questions upon which I do not presume to offer any opinion, but I think that they are well worthy of the consideration of a Committee; nor will I venture to offer any opinion as to whether, upon questions of law, those learned persons should be allowed to vote. At the present moment the Judges sit as mere assistants to your Lordships, but they are debarred not only from voting—they cannot even speak, nor can they put a single question to counsel, nor call for explanations on points that may appear to them doubtful, except through the Lord Chancellor. In former times, it is well known that the attendance of the Judges was by no means casual or accidental, but was of daily occurrence; and in comparatively late times, we find that Lord Somers, in the name of the House, rebuked the Judges for neglecting to give that attention to the business of the House which they were bound to render by the terms of their appointment, and threatened them with the high displeasure of the House. It is, therefore, well worthy of the consideration of your Lordships, whether the Lord Chancellor, or the Members of the House, should not have the power of calling in the most eminent men on the judicial bench, as the Judicial Committee of the Privy Council does, for the purpose of hearing and advising on questions of importance in law and equity. This is within the competence of the House, I imagine, at the present moment; but if the judicial persons so called in were to have the power of determining and voting on questions, 1460 that, I apprehend, can only be done by authority of an Act of Parliament. I will say but one word with regard to the question of Scotch appeals. As regards Scotland I am bound to say that the present state of things is most unsatisfactory, and that opinion is shared by persons who are very distinguished members of the Scotch bar; and, in point of fact, it was only this morning that I received a letter from an eminent Scotch Judge, saying that he was desirous of stating the cause of Scotland before a Committee if one was appointed. The distinguished individual from whom I received this letter is the Lord Justice General, than whom there is not a greater authority on the inconvenience to which Scotland is subjected by the present constitution of the Court of Appeal in this House. But neither the creation of new Peers of Parliament for life, nor the creation of official Peers, if they are to be conferred on English Judges only, would meet the complaint of Scotland; and if the House should be of opinion that it is desirable in regard to matters affecting England and Ireland to have the advice and assistance, and, if possible, even the vote of the Judges in law and equity, then it follows as a matter of necessity that in the case of Scotch appeals we should have power to summon to our assistance and to place beside us the most eminent of the Scotch Judges, the Lord Justice General, and the Lord Justice Clerk, and perhaps the Lord Advocate, though in his case, not being a Judge, he should speak with more hesitation.
There is but one other point to which I will direct your Lordships' attention, and that is the question of form which requires the attendance of two or three noble Lords to act as judges in our court of appeal. That proceeds from the fact that, according to the construction of this House, the cases of appeal are, by a fiction, considered to be decided by the whole House, and the House itself requires a quorum of not less than three. Now, my Lords, that is not the case as regards the Judicial Committee of the Privy Council. That Council delegates to a Committee of its own body those functions which in reality your Lordships delegate to certain noble and learned Members of your Lordships' House; but the whole proceeding is different. The Judicial Committee of the Privy Council hear the case, and after hearing they report their opinion to the Queen, and the Queen in Council issues an order 1461 in conformity with that report. Now, my Lords, if any difficulty arises from the form of the House of Lords, why not refer the appeals to this House to a Committee consisting of the noble and learned Members of the House? This would do away with the farce of requiring the assistance of some lay Peers; and if it be thought fit to have the assistance of the Judges and Vice Chancellors, let them sit as part of the Committee, authorised by the House to inquire and report on the cases. Let the Lord Chancellor, at the meeting of the House, present the report, and move that your Lordships do agree to the report of the Committee. That mode of proceeding would keep in the House the full jurisdiction which it exercises at the present moment, and the decision would be the act of the House, as the Order in Council is the act of the Sovereign. I do not suppose or imagine for a moment, that on the bringing up of the report there would be the slightest disposition to canvass or question the decision; I believe that the Motion for its adoption would be a mere matter of form. At present, I believe, there is nothing in the Resolutions of the House or in law—nothing more than a general understanding—to debar any half-dozen Members of your Lordships' House from coming down and overruling the decision to which those noble and learned Lords to whom I have referred may have arrived; but I do not remember more than one instance in which that has taken place. In that instance, a majority of your Lordships reversed a decision of the court below, and in so doing overruled the all but unanimous opinion of the Judges—that is to say, with the exception of the then Baron Parke, who has lately been created Lord Wensleydale, and one other learned Judge. Notwithstanding the strength of that case, and the amount of political feeling which it engendered, it was unanimously agreed by the whole of the Members of your Lordships' House that, unsatisfactory as that judgment was to many of them, it would be far more unsatisfactory and dangerous if the lay Members of the House presumed to interfere with the judgment of those to whom you had delegated the consideration of the question. I can see no difficulty, therefore, in a Committee reporting to your Lordships' House in the manner that I have suggested, and in the House approving and giving effect to the report of the Committee. This is rather a matter of 1462 form than of substance; the great question is, does the appellate jurisdiction of this House stand in need of alteration and improvement? Does it discharge the duties of its high office as satisfactorily as it is possible to have them discharged by any alterations which you can introduce? Because, if it does not, and if there are defects to be remedied, let us deliberately and dispassionately consider what those defects are; let us inquire—if you please by discussion among ourselves, or by calling witnesses before a Committee—into the nature of the defects, and how far the various remedies which are or may be suggested are applicable to meet those defects, and to make this House, as it is the highest, so also the most perfect, the most impartial, and the most unobjectionable tribunal for dispensing those important duties of justice which are involved in deciding appeals from those who, with the exception of this House, are the highest judicial authorities in the realm. I beg to move—That a Select Committee be appointed to inquire whether it is expedient to make any, and if so, what Provision for more effectually securing the efficient Exercise of the Functions of this House as a Court of Appellate Jurisdiction; and to report their Opinion thereupon.
§ EARL GRANVILLE
, in rising to propose, as an Amendment, to add after the word "jurisdiction," the words "and, further, how any such provision would affect the general character of this House," said, it is impossible to have listened to the speech of the noble Earl without being deeply interested by the singularly clear statement which he has made of the whole state of the case. There is one point in which I entirely agree with the noble Earl, and that is, that if it came to a question whether this House was to retain or to abandon its appellate jurisdiction, its retention of those functions being prejudicial to the administration of the justice of the country, though beneficial to the character of the House, there should not be one moment's hesitation as to the course they ought to adopt. I also concur in thinking that those functions form a very important portion of your Lordships' duty, and that they go far to strengthen the utility and dignity of the House, and to increase the respect in which it is held by the country. I think, therefore, that it becomes us to endeavour, by every means in our power, to render the discharge of those functions as perfect as possible. The noble Earl 1463 stated all the objections that I am aware of which have been raised against the principle of the appellate jurisdiction of this House. I shall not go over, as he did, some of the answers which could be made to those objections; still less do I intend to follow him in his discussion of the different plans which may be suggested for the improvement of the tribunal in question. I refrain from doing this for several reasons; but, more especially, because I am anxious that the Government—if not the opposite side of the House—should go into the Committee perfectly unembarrassed, and wholly free to form an opinion as to what is really the best plan, and without any endeavour to bolster up their own opinions on the subject. I therefore think that I shall exercise a wise discretion in refraining from following the arguments of the noble Earl, although there are some points on which I do not altogether agree with him, and with respect to which I might find it necessary to say something. Instead of doing so I shall confine myself to a very few brief observations with regard to the almost verbal Amendment of which I have given notice. Your Lordships will remember that the other day I took the liberty of stating the circumstances of embarrassment in which the Crown and the House were placed by a recent decision of the House. I said that I was authorised to state that time would be given by Lord Wensleydale for the fair consideration of this most important subject. I pledged myself on the part of the Government that we would approach the question calmly, and without any personal or party feelings, and I expressed a hope that we should be met in the same feeling by all sides of the House. The noble Earl followed upon that occasion, and gave evidence, of the spirit with which he intended to enter upon the inquiry, and said, both for himself and others of your Lordships, how painful they felt it to appear, even for one moment, in collision with the Crown on any of its prerogatives—a sentiment, I am sure, in which all your Lordships participate. The noble Earl then made a certain suggestion, and said that he should give notice of a Motion similar to that which he has now moved. To that replied, that if a pledge were given that there should be no unnecessary delay, and if I were satisfied with the terms of the reference, I should be inclined to agree to the proposition. The noble Earl gave the pledge which I indicated, and the same day also he gave the 1464 words of his Motion. Upon looking at the terms of that Motion it struck some Members of the Government that it was possible that the Committee might consider themselves excluded from the consideration of the constitutional question involved as bearing on their judicial functions unless some additional words were inserted in the Motion. I was very anxious, however, that no additional words which I suggested should have the effect of raising any angry discussion before we went into the Committee, because I felt that the less the subject were debated before we go into the Committee the more likely we should be to attend to the business of the Committee in an unprejudiced manner. I thought it necessary, however, to propose the introduction of the words of which I gave notice, in order to save the right of any Member of the Committee to propose anything which he thought might tend not only to improve the appellate jurisdiction of the House, but also to meet the difficulties which have arisen as between the Crown and the House. It must be quite evident to your Lordships, that when two Estates of the realm disagree, the most natural way of escaping from the difficulty would be to call in the third Estate, and by the agreement of all three to put an end to that which must be an anomaly, and which, in some degree, reflects upon the constitution. The noble and learned Lord opposite I know very much deprecated the idea of introducing any Bill to obviate the difficulty, He did not state what his reasons were; but no doubt he considered it undesirable that we should provoke any discussion in another place with regard to the functions and constitution of this House. I am sorry to say that the subject has been already introduced into the other House of Parliament, not by any person who is anxious for the strengthening of the appellate jurisdiction of this House, still less by any democratic opponent of the House of Lords or of ancient institutions, but by a representative of the Conservative party in that House. Now I do not wish to reflect for one moment on what may have arisen in the mere heat of debate, more particularly as I feel that it is entirely opposed to the views of the noble Earl opposite that the subject should be used as a weapon of offence in party warfare; but I so far agree with the noble and learned Lord opposite, that I think that if Government were to introduce a Bill on the matter, without any consideration to the feelings 1465 of your Lordships, however well framed that Bill might be, such a course would tend to widen rather than to heal the breach which exists; and I cannot conceive any better course of dealing with the question than that of agreeing to the Motion of the noble Earl by which some of the most distinguished Members of this House, being nominated on the Committee, would be able to discuss all the bearings of every proposition that may be made. I frankly admit that this was my object in proposing the Amendment. The words I think cannot be objected to, because, whatever course the Committee may adopt—whether that so strongly urged by the noble Earl of calling in the assistance of the Judges, or any other course—it will, to a certain degree, affect the character and dignity of the House. At the same time, the proposition attributed, without, the slightest foundation, to me by the noble Earl of advocating the creation of some sixteen or twenty law Peers, would certainly affect the character of the House. It is almost impossible to go into these questions without in some degree considering its effect upon the House itself. Even upon the point—one of the strongest—of the absurdity of a lay Peer sitting there for days together, and taking no part in the judicial proceedings, the very fact of a formal Resolution excluding him from taking such part ought to be considered with a view to the general character of the House. I am not aware that any objection will be made to the Amendment I propose, which is to insert after the word "jurisdiction," the words, "and further how any such provision would affect the general character of this House."
§ Moved, to insert after the word "jurisdiction" the following words, namely, "and further how any such provision would affect the general character of this House."
said, he did not think there could be any objection either to the Motion or to the Amendment which had just been proposed, and he hoped they would be agreed to. He would not, in ordinary circumstances, have troubled their Lordships with any observations; but he was about to leave London on circuit, and as the Committee might make its Report before his return, he craved indulgence while he briefly stated the result of some very serious meditations on the subject. He agreed that it was of the greatest importance, not only to the dignity and utility of their Lordships' House, 1466 but to the public welfare, that their judicial functions should be retained. They were such as entitled it to the respect of the country, and had been attended for ages with veneration; and he thought no other Court of Appeal of equal value could be appointed. He was educated, as a lawyer, with the most profound respect for the appellate jurisdiction of the House. For many years, while he practised as a barrister, he was employed in appeals at their bar, and he must say that, whether the decisions were for or against him, he was always satisfied with the exercise of that jurisdiction, and he believed also that the same satisfaction had been felt by the public. After he had the honour of becoming a Member of the House, for nine years he attended the hearing of every writ of error and every appeal that was argued at their Lordships' bar. During the time that Lord Lyndhurst and the deceased Lord Cottenham alternately held the Great Seal there were four law Lords who constantly attended; and, unless he was much deceived, the decisions of the House, as a Court of ultimate appeal, had given complete satisfaction in England, Ireland, and Scotland. For some cause that he could not assign, a change had taken place in public opinion. One complaint made both in public and private was, that when two noble and learned Lords sat upon an appeal, and they happened to differ in opinion, the case was decided by a mere accident. He thought it would have been much better if such cases had been re-argued before all the law Lords, whose decision could not have failed to give more satisfaction. But whatever the reason might be—and for his own part he had the most sincere respect for the noble and learned Lord who now presided over the House—there was a loud call for some alteration in the exercise of their jurisdiction as a Court of appeal. The question was, what that alteration should be? He would cautiously abstain from again entering upon the subject of peerages for life. Life peerages might be necessary, and if an Act of Parliament were passed for that purpose they might be introduced; but by an Act of Parliament, and that alone, could they be created so as to give a right to sit and vote in the House. But he doubted whether making Peers for life would at all strengthen the appellate jurisdiction of the House. Nor could their Lordships have the assistance of the chiefs who were presiding in the 1467 superior Courts in Westminster Hall, because they were necessarily occupied in their own courts. He himself last Session sat four days hearing an appeal from a court of equity, being much pressed to do so by his noble and learned Friend on the woolsack, but it caused great inconvenience, and indeed it was wholly incompatible with the duties of the chief of any of the Courts in Westminster Hall to give any effectual assistance to their Lordships as Judges of appeal. With regard to attaching peerages to offices, that was liable to this objection, that when a Judge retired from his office he would lose his seat in the House, and at a time when he was supposed to be still capable of lending the most efficient assistance to their Lordships he would be declared disqualified, having ceased to hold the office to which his peerage was attached. Nor did he think that a great deal of assistance could be expected from retired Judges, because they must be very far advanced in life, and it could be but seldom that their Lordships could derive advantage from such a source. He was also of opinion that their Lordships could not entirely rely upon mere deputy-Judges. As to the writ of assistance to which his noble and learned Friend had alluded, unless the learned persons were Privy Councillors, their Lordships had no jurisdiction over them, while, if they were made Privy Councillors, and came in as mere assistants, he doubted whether the objections to the appellate jurisdiction of the House would be obviated. Suppose the deputy judges were unanimous, or nearly so, in opinion, would their Lordships venture to give a decision on the other side? He remembered a case where the Judges were absolutely unanimous—it was a question respecting the validity of a marriage in Ireland by a Presbyterian minister—and he and two learned and noble Lords thought it their duty to give a strong opinion against all the Judges; but because there was an equality—three to three—the case was decided according to the rule which declared that where there was an equal division of opinion, the judgment of the Court below should be affirmed. That being so, he thought they would not attain their object by merely calling in certain Judges as deputy assistants. But his noble and learned Friend (Lord Broughham), who was now passing from one part of the House to another, proposed another plan, which was to refer all their 1468 appeals to the Judicial Committee of the Privy Council. The establishment of that tribunal did great credit to his noble and learned Friend; but he thought his noble and learned Friend was rather too fond of his own child when he proposed that their Lordships should put the Judicial Committee of the Privy Council in the place of that House, and should be governed by its decisions instead of retaining the appellate jurisdiction in their own hands. That would be substantially, although not nominally, parting with their appellate jurisdiction altogether. Moreover, the Members of the Judicial Committee of the Privy Council were named by the Crown; they held their offices during the pleasure of the Crown, and to a body so constituted it would be wrong to transfer the jurisdiction of the House as the final court of appeal. He now came to the proposal submitted that evening by the noble Earl opposite—a proposal which, although it would require the most mature consideration, seemed to him to be the most judicious mode of attaining the object in view. Let them have a Judicial Committee of their own House. That plan was in accordance with ancient practice, and had been acted on in former days with great advantage. At one time the King's ordinary Council constituted a Judicial Committee of the House, and it appeared from our ancient annals that that Judicial Committee had referred to them all questions of law that came before their Lordships. Those questions were considered by that tribunal as a Committee of the House; and after the Committee had pronounced its opinion the House formally gave judgment, adopting what had been done by the Committee. In his investigations he had found repeated instances of appeals referred by the House to the Judges, of appeals referred to several Lords and the Judges, of appeals referred to several Lords and the Attorney and Solicitor General. Therefore they had abundant precedents for appointing a Judicial Committee to hear appeals and make a report; which report, unless there were strong reasons to the contrary, the House would adopt as the foundation of its judgment. His opinion at present was, that the Committee should consist of all the law Lords who were Members of the House, of the Lord President, who had shown himself to be a most distinguished law Lord, of the Chairman of Committees, and of a certain number of law and equity 1469 Judges, and of Judges from Ireland and Scotland. From that body their Lordships would select a proper tribunal for each case, according to the nature of the case, as was now the practice in the Judicial Committee of the Privy Council. The Committee would not sit in that House, but in some adjoining room, with all the accompaniments of a court of justice. In that manner he believed a satisfactory conclusion would be arrived at in every case. As one instance in which the judgment of a tribunal similar to that now proposed for their consideration was adopted as the judgment of the House, he might refer to a case which took place in the reign of Richard II., between the Prior of Montecute and Lord Richard Seymour. The case was referred to the Judicial Committee and argued before them, and their judgment, confirmed by the House, ordered that the decision of the Court of Queen's Bench should be reversed, and the appellant restored to his rights. This, then, was a precedent for the course now proposed to be taken, which had been the practice from the remotest times. The question was not without difficulties, but those difficulties might be overcome. He hoped that the Committee would examine the late and the present Attorneys and Solicitors General, who had all practised a great deal at their Lordships' bar, and also Mr. McQueen the Lord Advocate of Scotland and others, whose opinions on this question were entitled to great respect. He did not speak of the present moment, but there had been periods when Scotland had had great reason to complain, and when Scotch appeals had been referred to Judges ignorant of Scotch law. He hoped their Lordships would soon have a Judicial Committee, from which they might select the proper Judges to try every case that came before them.
§ LORD ST. LEONARDS
said, he had heard with great gratification the expression on both sides of the House that the present question would not be approached with any party feeling; but he warned the noble Earl opposite (Earl Granville) that it could not be disposed of in so easy a manner as he seemed to anticipate. The noble Earl appeared to think that a pledge had been given on his side of the House that there should be no delay. If by that was meant no unnecessary delay, he was quite willing to concur in such a pledge; but it was evident that a great question like this could not be disposed of without occupying 1470 a considerable time. They would have to examine witnesses, because, however reverently the appellate jurisdiction of the House had been treated up to within a short period it was impossible to deny that recently articles had been published directed against the jurisdiction of that House as a final court of appeal. He admitted that nothing could be a fairer subject of discussion; but, at the same time, the appellate jurisdiction of the House had been so long respected, it had so long taken its stand among the institutions of the country, that it was not to be lightly dealt with; and he was, therefore, anxious that some of the many distinguished advocates and others who had so long practised at their Lordships' bar should be examined, He spoke only from what he had read; but in the report of a speech recently delivered by Her Majesty's Solicitor General, but which he (Lord St. Leonards) had little doubt was an exaggeration, there occurred an expression of opinion that the appeal business in the House of Lords was conducted in a manner that led most men to doubt the propriety of the retention of its jurisdiction; and a legal journal, commenting upon the observation, had stated, in terms of censure, that it was most unsatisfactory to the suitor. The article went on to say—The administration of justice should not only be unsuspected, but above suspicion, and it is a serious thing that the highest tribunal of appellate jurisdiction in the country, the last resort of the wearied and almost exhausted suitors, should be exposed to obloquy and contempt, not only by the lay portion of the community, but even by lawyers, with the Solicitor General at their head.Now, he rejoiced at the appointment of a Committee, even if it went no further than to ascertain on what grounds charges of this kind were brought forward. He had practised at the bar of that House as much as any man in the kingdom. Although more learned men might have assisted their Lordships, there never had been a period when causes were heard with more attention by those who assisted their Lordships with their advice, when more attention was given to the hearing of cases and the decision of the cases, and when more elaborate reasons were given for those decisions, than during the present period in which he found this discontent to be so great. Not a man in England could say that the administration of justice by their Lordships was suspected; and he could not, for one moment, admit that the manner in which the appellate jurisdiction of 1471 their Lordships' House had been exercised justified the objections that had been made. It was, therefore, of the highest moment to ascertain whether there was any foundation for the statements which have influenced the public in forming such an opinion as to the exercise of the appellate jurisdiction of the House. In discussing the question of life peerage he was wholly unaffected by anything relating to the appellate jurisdiction of that House: but it had been said that those who opposed the creation of life peerages were determined to maintain that jurisdiction altogether untouched. For himself, he had for the last twenty-five years taken every possible opportunity, as a Member of the other House, and as a public writer on the law, to call the attention of the Government and of the public to the appellate jurisdiction of that House, with a view to improving the mode in which that jurisdiction was exercised. Never thinking that the jurisdiction could be taken away from their Lordships' House, all he had attempted and desired was, that the exercise of it should be improved; for he felt confident that if their Lordships wished to strike away one of the main pillars upon which their House rested, they would denude it of the appellate jurisdiction by which its usefulness to the country would be diminished. In 1830, after he had left office as Solicitor General, he stated to the other House what measures of law reform the Government to which he was attached had intended to bring forward, and he particularly touched upon the question of appeals, and advised the creation of an Equity Court of Exchequer. A court of appeal had since been created, and, therefore his suggestion was no longer necessary. During his whole life he had objected to that to which the noble Earl (the Earl of Derby) had referred that evening—namely, an appeal from a man acting in one capacity to the same man filling a different office. A man appealing from Philip drunk to Philip sober might have some chance of the reversal of the first decision; but there could be no reason for expecting that a Lord Chancellor who, after mature consideration, had arrived at a certain conclusion in the Court of Chancery, would come to an opposite conclusion while sitting in the House of Lords. The evil, however, to which he referred could not be said to have existed in recent times, because, for a considerable time past, the Lord Chancellor had seldom sat in that House without 1472 the assistance of other noble and learned Lords. His noble and learned Friend (Lord Campbell) had referred to a case in point in which his noble and learned Friend was called upon to assist in hearing an appeal from a decision of his (Lord St. Leonards) in the Court of Chancery, which resulted in his judgment being unanimously affirmed. He spoke of that to show that the abuse of appealing from the man to the same man did not at present exist; for there were four law lords present, and three of them read written judgments. It seemed to him that there was a grave misunderstanding with regard to what took place in that House. Considerable dissatisfaction had been expressed in reference to cases in which two Members only of their Lordships' House sat in appeal, and, differing in opinion, the judgment of the court below was necessarily affirmed. The impression seemed to prevail that cases of this kind were frequent. There never was a greater mistake. During the three Sessions he had sat us a law Lord with his noble Friend on the woolsack, they had heard eighty-one cases. In seventy-one of those cases the law Lords were agreed, and either affirmed or reversed the decisions of the courts below according to their unanimous opinion. In the great Bridgewater case his noble and learned Friend the Lord Chancellor was opposed by all the four law Lords; but it by no means derogated from the respect and deference due to the opinion of the noble and learned Lord, because a great majority of the Judges agreed with him in that opinion. Putting aside that case, there were nine cases in which they differed. He would here take the opportunity of observing that there were usually three law Lords, and not two, engaged in the hearing of appeals, and he (Lord St. Leonards) and his noble and learned Friend on the woolsack had, throughout the greater portion of the year, the assistance of his noble and learned Friend near him (Lord Brougham). In one of those nine cases, his noble and learned Friend (Lord Brougham) agreed with him, and, consequently, the Lord Chancellor being only one to two, the decision was carried by a majority. In four other cases he differed both from the noble and learned Lord on the woolsack and from his noble and learned Friend (Lord Brougham). The majority again decided, and, therefore, his opinion was overruled. There was no harm, so far, done to the suitors, because the best of all tribunals, if the men were 1473 competent and careful, was a tribunal of three deciding by a majority. There were four cases only in which his noble and learned Friend on the woolsack and himself, sitting alone, differed in opinion. The result was, that two of those cases were affirmed according to his opinion, and two were affirmed according to the opinion of his noble and learned Friend. There was nothing singular in that. It was impossible that two men, honestly desirous of discharging their duty, and having to decide on complicated matters of fact and difficult points of law, should not have occasional differences of opinion. It was supposed there was no decision in such cases. That was not so. There was an absolute decision; for, in point of fact, the decree below was affirmed by the actual decision of the House, and settled the law; and therefore, while he did not approve of a tribunal composed of two persons, it was not open to the objections supposed. The public had besides a considerable security against the perpetration of any injustice, in the fact that the two Judges always set forth in deliberate argument the grounds of the decisions at which they had respectively arrived, and they must be aware that their reputations would depend very materially on the force of the reasoning by which they sought to establish their conclusion. Nor must the House imagine that when his noble Friend on the woolsack and himself differed, they came to that House and gave an adverse opinion, without consultation. In cases where there was, unfortunately, any difference of opinion between them, he (Lord St. Leonards) always endeavoured to bring over his noble and learned Friend to his opinion by stating to him fully the grounds upon which he had arrived at any particular conclusion; and his noble and learned Friend always took the greatest pains to examine every case which occurred. Under these circumstances, he felt he was justified in saying that, although he did not approve of a tribunal composed of two Judges only, yet even two Members of the House would form a better appellate tribunal than the Lord Chancellor sitting alone, as he had often done in former times. But the opinions of a Whig Government had not always been averse to a court of appeal composed of two Judges. A former Government had established a court of appeal from the judgments of the Vice-Chancellors and the Master of the Rolls. That court 1474 consisted nominally of three judges—the Lord Chancellor and the two Lord Justices—but the fact was, as the Lord Chancellor was almost always otherwise occupied, ninety-nine out of a hundred cases of appeal were disposed of by the two Lords Justices. Thus, Government had not only sanctioned, but had created a court of appeal, composed of two Judges, who, of course, must be expected occasionally to differ in opinion; in which case the result of the appeal was that the original judgment remained undisturbed. But what was the opinion of the present Government? There was now a Bill in the other House, introduced by the Solicitor General for Ireland, for the transfer of the business of the Incumbered Estates Court to the Court of Chancery; and in that Bill a new appellate tribunal was proposed, although he (Lord St. Leonards) could not see any reason for it. He believed that the Lord Chancellor of Ireland was quite able to hear and dispose of all appeals; and during his five years' experience in that office, he never found any difficulty in disposing of all the business which was brought before him. The new appellate tribunal was proposed to consist of the Lord Chancellor and an ex-Chancellor, if one could be found; if not, a common law Judge, who must therefore neglect his legitimate business; or, if neither functionary could be obtained, then the Government could appoint a barrister of fifteen years' standing. That court, however composed, would consist of only two persons, and would at the same time detract from the authority of the Lord Chancellor. He therefore submitted that the idea of inconvenience arising from appeals being decided by two Judges was a novel apprehension in the minds of the Government, as well as, perhaps, in the minds of the public. He might observe that the constitution of appellate tribunals had occupied much of his attention. In 1830, he brought, as he had said, the matter under the consideration of the House of Commons, and in 1835 he addressed a public letter to Lord Melbourne upon the subject. In 1841, being still a Member of the other House, he moved certain Resolutions which were affirmed, and he then brought in a Bill founded on them, to alter the appellate jurisdiction. He proposed that the Lord Chancellor should have two persons appointed by the Crown, and to be called "Lords Assistants," and that they should sit in their Lordships' House in all judicial matters. 1475 If they were Peers they would have a voice in the decision; but if they were not Peers they were to be at liberty to speak and deliver their opinions, but they would not have any voice in the decision. He would not say that that plan might not be liable to objection, but it might perhaps be deserving of further consideration. One of the greatest problems to be solved was, how to preserve the appellate jurisdiction of the House of Lords, and at the same time improve its efficiency. Their Lordships wanted legal assistance—constant legal assistance; because the great benefit of a court of appeal was its fixedness. What the public required was the certainty of the law; but, unless they had a fixed court of appeal, they never could have a certainty of the law. For the last quarter of a century, no man had been more anxious than he to make perfect the appellate jurisdiction of that House, and in 1849 he published a work on the decisions of the House, in which he set forth all the proposals which had up to that time been made for its improvement; and those proposals would of course receive more or less of the attention of the Committee which was about to be appointed. He had given it his most anxious consideration, and he was quite sure that the suggestion of the noble Earl, of giving to a Committee of their Lordships' House that jurisdiction which belonged to the House itself, would not answer. It never could work well. This being his firm conviction, it was not in his power to support the plan proposed by the noble Earl. The best course the House could adopt would be the appointment of the proposed Committee; and he had every reason to believe that the inquiries of that Committee would throw considerable light upon the difficult and important question to be referred to it.
said, he should abstain from going into any one of the topics so ably handled by his noble Friend (the Earl of Derby) and by the noble Earl opposite (Earl Granville). But it was not at all from underrating the great value of their suggestions, still less from underrating the great and paramount importance of the subject; but it was simply because he considered that it would be inconvenient to anticipate the inquiry that would be made by the Committee by stating what was his impression either of the nature of the defects of the present Court of Appeal, or of the nature of the 1476 remedy to be applied. He had been upwards of twenty-five years a member of the Court of Appeal, and he was at the bar the same number of years practising in that court; consequently he must say to his noble and learned Friend (Lord St. Leonards) that his attention was not now for the first time directed to this subject. His hope and trust was, that no sensitiveness would at all relax either the disposition or the determination of their Lordships to enter fully and speedily into the inquiry, by all the means by which an investigation might be most successfully conducted—by an examination of documents, of decisions, of former proceedings, of witnesses, members of the bench and the bar, and, if they could, witnesses from Ireland and Scotland—and by every other possible course. He had himself been restrained from carrying further his measure merely by the fear that he might be trenching on their Lordships' jurisdiction. He trusted they would strenuously pursue the inquiry, and that it might lead to a profitable result was his prayer, his hope, and, he would add, his expectation. He entirely agreed with the noble Earl who had so clearly introduced this question, in holding (as he believed all their Lordships would hold) that if (which Heaven forbid) they had to choose, whether to abandon their judicial functions, or to see in this high court of error and appeal justice administered in a way that was no longer beneficial to the people of this country, then he had no hesitation in saying, "Rather abandon these judicial functions, important as they are to this House and to the constitution, than not provide a suitable remedy for the defects existing in our judicial capacity." He hoped, however, that to this alternative they would never be driven, and that by a slight improvement in their course of proceeding (if an improvement in the structure of the Court should be found impossible), they should retain for this Court that public respect and confidence which he, for one, denied they had ever lost.
THE LORD CHANCELLOR
I did not intend to say a single word in this debate, as to which the only regret I have to express is, that some of your Lordships have committed yourselves to an opinion on the question. I wish to leave myself free to go into the Committee unbiassed and unimpassioned. I think it due, however, to my own position, and to that of one or two noble and learned Lord who are in the 1477 habit of sitting with me here in a judicial capacity, to make one or two observations upon what has been said to be the lost character of this House as a court of appeal. I do not believe that in the estimation of the country the judicial character of this House is lost; and one material ground for leading me to believe this is, that the common subject-matter of complaint is one which has really no reference to the merits of the case. It is said that one noble Lord hears the case, another hears it answered, and a third is present to deliver his judgment; but these are only objections to the forms, not to the substance, of your Lordships' proceedings. The noble Lords who sit to hear the opening, the continuance, and the judgments are really only present in consequence of a regulation of your House, which I am perfectly ready to say ought at once to be rescinded. The Lord Chancellor, or the noble and learned Lord who presides, should always constitute a quorum. But though this is hardly any reform worth speaking of, it would remove a great portion of that which is stated to be unsatisfactory in publications the authors of which have not looked to the bottom of the subject. The notion that noble and learned Lords come in and hear a portion of the discussion, and then give their judgment without having heard the whole case, is the notion of a person utterly unacquainted with what goes on here. Nothing whatever of the sort takes place. I will not say that in the course of a long argument a noble and learned Lord may not walk away for one or two minutes—the same thing takes place constantly in the Court of Queen's Bench and the other courts; but the learned person so temporarily leaving does not lose the thread of the argument; and to treat that as a special peculiarity of this House as a court of appeal is to betray a total ignorance of what goes on in other tribunals of justice. I have seen the same thing happen in the Judicial Committee; a member of that tribunal has gone out for a few minutes and come back, when he has immediately been put in full possession of all that has passed in his absence. No one can pretend to say that the interests of justice suffer from such a proceeding here or elsewhere. Now, as I said before, I do not wish to pledge myself to any opinion upon the subject before your Lordships. I concur with my noble and learned Friend in fearing that we are instituting an inquiry which, in scope and extent, will be extremely difficult to deal with. However, we shall endeavour 1478 to do the best we can, and, as far as I am concerned—and I believe I can say the same for all your Lordships who will act upon the Committee—we will look at the question perfectly dispassionately, with the sole object of coming to the conclusion which will be best calculated to promote the public interest.
§ The said Motion, as proposed to be amended, agreed to.
§ Lords named of the Committee: Committee to meet on Monday next.
§ House adjourned till To-morrow.