§ LORD REDESDALE
rose to move Resolutions respecting the jurisdiction of their Lordships' House as the ultimate tribunal of Appeal for the United Kingdom, of which he had given Notice. The noble Lord said, that in these Resolutions his reasons for being opposed to the abolition of the Appellate Jurisdiction of their Lordships' House were pretty fully stated. He thought that the constitution of one Tribunal of Ultimate Appeal for disputed suits from the Courts of all the three Kingdoms was more advantageous than the creation of separate jurisdictions for such appeals. If the principle of having only one such tribunal was departed from, and a claim should arise to property in more than one kingdom on a doubtful point of law, on which their respective Courts of Ultimate Appeal should differ, a legal and social scandal would follow, which could not occur if the last appeal had been to one Supreme Court as at present. Their Lordships' House had long supplied, and was alone capable of satisfactorily supplying, such a tribunal, from which, under the provisions of the Supreme 1397 Court of Judicature Bill, it was proposed to separate England, at a time when its efficiency had been generally acknowledged, and its jurisdiction retained for Scotland and Ireland as especially satisfactory to those countries. As regarded their Lordships' House, the retention of this jurisdiction was most important, not only on high constitutional grounds, but for reasons connected with the succession to Peerages, which were legal rights; for in the event of a disputed succession to estates in more than one kingdom on a question of legitimacy dependent on a point of law such as might arise on a question of foreign marriage, the heir to which would also be entitled to a Peerage in each of those kingdoms, if the decision as to the right to the estates should be different in the respective Courts of Ultimate Appeal, their Lordships' House, although deprived of its status as a Court of Law, must decide as to the Peerages against the finding of one of those Courts, and a person who might by such decision be declared illegitimate would, nevertheless, continue to hold the estate to which, if illegitimate, he would have no claim, and the person to whom the Peerage should be awarded by this House would hold the same in defiance of the law of the kingdom to which the Peerage belonged, as declared by the Courts of that kingdom. Again, if the principle of the Judicature Bill were extended to Scotland and Ireland, three Courts of Ultimate Appeal would be established in the United Kingdom, and as it was acknowledged that both those kingdoms preferred the Appellate Jurisdiction of the House of Lords to that proposed to be constituted for England under the Bill, and on that account were not brought under it, and as provision was made in the Bill for the rehearing of an appeal, if the Court of Appeal thought fit so to order, and as such cases were likely to be few, and of a character particularly requiring the decision of one Supreme Court, it would be desirable that such appeals should be referred to the House of Lords in like manner as appeals from Scotland and Ireland. He heard with much pleasure last evening the argument of his noble and learned Friend (Lord Cairns) on the injury which the severance of the Lord Chancellor from the Court of Chancery would be calculated to inflict on the office of Lord 1398 Chancellor itself. He thought a similar argument applied in the case of the proposal to deprive their Lordships' House of its Appellate Jurisdiction. He believed that the dignity, prestige, and influence of the House itself would suffer by such a measure. He would not submit his Resolutions in one Motion; but would now move the first of them—Moved to resolve,1st. That one tribunal of ultimate appeal for disputed suits from the courts of all the three kingdoms is more advantageous than separate tribunals for such appeals (The Lord Redesdale).
said, he should support the Resolution of the noble Lord. From the first he had opposed the proposition to abolish the Appellate Jurisdiction of their Lordships' House. He desired to impress upon their Lordships that their Appellate Jurisdiction had gradually declined through want of sufficient attendance of their Lordships at the hearing of appeals. The opinions of his lamented father, of Lord Brougham, and of other authorities strengthened his convictions in respect to the proposals contained in the Bill of the noble and learned Lord on the Woolsack.
THE LORD CHANCELLOR
said, he felt he ought not to omit stating to their Lordships the view he took of the propositions of the noble Lord the Chairman of Committees, which, he thought, were really open to answer, both as to matters of fact and of principle. As to the matter of fact, his noble Friend was quite in error. The noble Lord assumed that this House had long supplied, and could alone supply, a satisfactory Tribunal which, being an Ultimate Court of Appeal for disputed suits from the Courts of all the three Kingdoms, prevented the possibility of any divergence in the principles on which their decisions were given. The noble Lord was mistaken. That House had never down to the present time stood precisely in the position which the noble Lord's propositions assumed. It had never been the solo Tribunal of Ultimate Appeal from all the Courts of the three Kingdoms. Until very recently, it was not so in appeals from the Probate Court, which determined all questions arising upon wills and intestacies. Appeals from the Admiralty Court still went to the Privy Council; and quite recently there had been a conflict of jurisdiction in one 1399 of those very Admiralty cases, which showed that the inconvenience which the noble Lord supposed could never occur under the present system could and did occur. It was also an error to suppose that the possibility of conflict would be confined to questions arising within the three Kingdoms, because the cases which arose in many of our dependencies would have to be decided by the same law as if they had arisen here. In questions of English law arising in India, the West Indies, Upper Canada, and the Australian Colonies, the Privy Council alone had ultimate Appellate Jurisdiction, and its decisions on all such points were received as authority in all the Courts of the Kingdom. The idea that that species of possible conflict was effectually precluded by the present state of things was, so far, not borne out by fact. Then, with regard to the argument founded on the authority of the House of Lords in matters of Peerage and Impeachment, the House did not sit as a Court of Law in questions of Peerage. A Committee of Privileges was an entirely different tribunal from the House exercising its Appellate Jurisdiction—in fact it was not a legal tribunal at all, because it was consistent with principle and usage for lay Peers to take part in its proceedings. In Impeachments their Lordships acted as the Grand Inquest of the nation; each noble Lord was then entitled to take his place and vote. Under this Bill conflict was not likely to arise on questions of law; if it did, it might be cured by legislation. As to questions of fact, everything depended on the estimate juries might form of the evidence submitted to them in each particular case. If they were in Committee of Privileges to decide on the right to a Peerage in favour of a claimant where a question of legitimacy was involved, there being largo estates depending on the same question in Ireland, he apprehended there was nothing to prevent the possibility of those estates being decided in Ireland to go to the person whom their Lordships held not to be entitled to the Peerage. It was, therefore, not accurate to suggest that every sort of conceivable variation in the result could be absolutely precluded. Of all plans hitherto suggested or tried, that of this Bill, by bringing into one focus, with the greatest authority, all the elements of Appellate 1400 Jurisdiction in this country, was, he thought, most likely to preclude accidents of that kind. It was of the very essence of the Bill that the best possible Court of Appeal should be constituted under it, and in order to obtain such a Court it was most important to have in it most of the illustrious men who, having attained the highest position in the legal profession, had become Members of their Lordships' House. But, suppose this Bill to be accompanied by a provision that the very important cases mentioned by the noble Lord might be re-heard by the House of Lords, that very class of persons whose presence was so much wanted would not be available in the Court of Appeal created under the Bill. Impediments would be thrown in their way, because they would also be wanted in their Lordships' House to decide the same questions if brought up from the Court of Appeal. Therefore, by adopting the proposition of the noble Lord, their Lordships would be cutting off a most important element from the Court of Appeal to be constituted under the Bill The noble Lord did not on that occasion put the matter on political, but on judicial grounds; and that being so, the inevitable effect of his proposition would be to embarrass our Supreme Court of Appeal without any adequate compensation in the administration of justice.
§ LORD CAIRNS
said, his noble Friend the Chairman of the Committees was so justly jealous of the honour of their Lordships' House, his mind was so stored with the knowledge of its constitutional history, and his noble Friend himself added so much lustre to the House by the way in which he discharged those very important duties which came under his care, that he felt great pain whenever he was unable to support any proposition presented to the House by him. But as regarded this particular Motion he should have very great difficulty in supporting it. The proposition was an abstract one. It was this—That one tribunal of ultimate appeal for disputed suits from the courts of all the three kingdoms is more advantageous than separate tribunals for such appeals.As an abstract proposition, he entirely agreed with that. It represented a state of things which in the abstract would be more desirable than separate tribunals. But, in the first place, if that proposition were affirmed, consequences might 1401 flow from it which his noble Friend did not intend. It might be said, "the best thing you can do is to take the Bill now before the House and extend it beyond its present scope, so that the Court of Appeal shall be not only for England, but also for Scotland and Ireland." That would be the logical conclusion from this proposition, but it was one which he would not be disposed to adopt. The proposition was based upon an assumption which he believed to be erroneous. The Resolution of his noble Friend proposed an ultimate appeal from the Courts of the three Kingdoms. Now, although it was true that this House had heard Appeals from England, Scotland, and Ireland, it was also a fact which should be borne in mind that their Lordships in appeals from each of these countries did not sit as one Court to administer one uniform law which applied to all the three Kingdoms. On the contrary, when the appeal was from an English Court, their Lordships sat as an English Court of Appeal, when from a Scotch Court they sat as a Scotch Court of Appeal, and when from Ireland as an Irish Court of Appeal. They had again and again put a construction upon the words of a Scotch will quite different from what would be done in the case of an English one, and had been obliged to say—If these words had occurred in an English will, we should have put a certain construction upon them as sitting in an English Court of Appeal, but, occurring as they do in a Scotch will, where the words receive a different construction, we are obliged to consider the form of words in a different manner.Their Lordships, therefore, did not form one Court of Appeal, but three Courts of Appeal, and, therefore, the objection of his noble Friend applied to the present constitution of things. At the present moment anomalies did occur, and he could not give a better example of them than he had done. Therefore, though in the abstract he should say it was better to have one Appellate Tribunal for the United Kingdom than several, we never had it. But if we were to have regard to abstract Resolutions, he would say it would be much more desirable that we should have one law for the three Kingdoms. Such Resolutions, however, expressed what we never had and never would have. If, after all the efforts which had been made to add strength and dignity to the Court of Ap- 1402 peal to be created by the Bill, they were to adopt the course which his noble Friend proposed, they would have thrown away all their trouble, and the new Court of Appeal would be neither one thing nor the other. We could not have two powerful Courts of Appeal one over the other. If they strengthened the Appellate Court as the Bill proposed to strengthen it, then there should be no appeal from that Court. As to cases of importance on which the Court of Appeal under the Bill might entertain different opinions, he would remind his noble Friend that an appeal to that House would be open to the same objection. For these and other reasons he regretted that he could not support the proposition of his noble Friend, and he hoped his noble Friend would see the inexpediency of Dividing the House upon an abstract Resolution.
§ LORD REDESDALE,
in reply, said, he was so fully convinced of the justice of his propositions, that he felt bound to take the sense of the House upon the Question.
§ On Question? their Lordships divided:—Contents 13; Not-Contents 38: Majority 25.1403
|Bathurst, E.||Headley, L.|
|Beauchamp, E.||Northwick, L.|
|Bradford, E.||Oranmore and Browne,|
|Redesdale, L. [Teller.]|
|Denman, L.||Sheffield, L. (E. Shef-|
|Egerton, L.||field.) [Teller.]|
|Ellenborough, L.||Stanley of Alderley, L.|
|Selborne, L. (L. Chan-||Gloucester and Bristol,|
|Saint Albans, D.|
|Boyle, L. (E. Cork and|
|Lansdowne, M.||Orrery.) [Teller.]|
|Ripon, M.||Brodrick, L. (V. Midle-|
|Camperdown, E.||Carysfort, L. (E. Carys-|
|Fortescue, E.||Castletown, L.|
|Granville, E.||Crewe, L.|
|Kimberley, E.||Ettrick, L. (L. Napier.)|
|Morley, E.||Foley, L.|
|Stanhope, E.||Foxford, L. (E. Lime|
|Eversley, V.||Hanmer, L.|
|Halifax, V.||Hatherley, L.|
|Sydney, V.||Lawrence, L.|
|Lisgar, L.||Romilly, L.|
|Lyveden, L.||Sundridge, L. (D. Ar-|
|Ponsonby, L. (E. Bess-||Wrottesley, L.|
§ Moved to resolve,
§ 2d. That this House has long supplied and can alone satisfactorily supply such tribunal, from which, under the provisions of the Supreme Court of Judicature Bill now before the House, it is proposed to separate England at a time when its general efficiency is acknowledged, and its jurisdiction retained for Scotland and Ireland as especially satisfactory to those countries:
§ 3rd. That if the principle of having only one such tribunal is departed from, and a claim shall arise to property in more than one kingdom founded on a point of law on which their respective courts of ultimate appeal shall differ, a legal and social scandal will follow, which could not occur if the ultimate appeal had been to one supreme court, as at present:
§ 4th. That as regards this House, the retention of this jurisdiction is most important, not only on high constitutional grounds, but for reasons connected with the succession to peerages, which are legal rights; for in the event of a disputed succession to estates in more than one kingdom on a question of legitimacy dependent on a point of law (such as may arise on a question of a foreign marriage), the heir to which would also be entitled to a peerage in each of those kingdoms held under similar limitations, if the decision as to the right to the estates should be different in the respective courts of ultimate appeal, this House, although deprived of its status as a court of law, must decide as to the peerages against the finding of one of those courts, and thus a person who may by such decision be declared illegitimate will nevertheless continue to hold the estate to which, if illegitimate, he would have no claim, and the person to whom the peerage shall be awarded by this House will hold the same in defiance of the law of the kingdom to which the peerage belongs, as declared by the courts of that kingdom:
§ 5th. That if the principle of the Judicature Bill is extended to Scotland and Ireland, three courts of ultimate appeal will be established in the United Kingdom, and as it is acknowledged that both those kingdoms prefer the appellate jurisdiction of the House of Lords to that proposed to be constituted for England under the Bill, and on that account are not brought under it, and as provision is made in the Bill for the re-hearing of an appeal if the Court of Appeal think fit so to order, and as cases which it is desirable should be re-heard are likely to be few, and of a character particularly requiring the decision of one supreme court, it will be desirable that such cases shall be particularly determined and referred to the House of Lords in like manner as appeals from Scotland and Ireland (The Lord Redesdale).
§ House adjourned at Seven o'clock, to Monday next, Eleven o'clock,