Sitting of 14 August 1834

MINUTES.
Petitions presented. By the LORD ADVOCATE, from Leith, against the Tithe of Fish.—By Mr. O'REILLY, from Dundalk, against their Magistrates, for not granting Retail Licences for the Sale of Spirits &e.—By Mr. BLAMIRE, from two Places, against the Spirit Duties' Dill.

COURT OF CHANCERY.
The Attorney Generalrose for the purpose of moving for certain returns from the Court of Chancery, the result of which he was sure would give the greatest satisfaction to that House and the country. It was of the greatest importance that the public should be correctly informed of the manner in which the judicial business of the country was disposed of; and even to the judges themselves it was but fair that a statement should be made, in order, if arrears existed, that a stimulus might be furnished; and

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if no arrears, that an estimate might be formed of the attention and energy which they had displayed. It gave him great pleasure to state, that in the Court of Chancery there were now no arrears subsisting, which he believed could never be so effectually said since the days of Sir Thomas More. Nor did this arise from any falling-off in the business of the court, because, in fact, it had been progressively increasing. Thus, in the three years, 1825, 1826, and 1827, Lord Eldon being Chancellor, 5,982 bills had been filed; in 1828, 1829, and 1830, Lord Lyndhurst being Chancellor, 6,231 were filed; and during the first three years, 1831, 1832, and 1833, that Lord Brougham had been Chancellor, the number of bills filed had increased to 7,180. With regard to appeals from the Master of the Rolls and Vice-Chancellor to the Lord High Chancellor, there had also been a similar increase. In 1825, 1826, and 1827, the appeals amounted to 131; in 1828, 1829, and 1830, to 145; and in 1831, 1832, and 1833, to 164. The House would, therefore, see that a considerable increase had taken place in the business of the Court of Chancery, both with respect to original bills filed, and the number of appeals which had been set down. Notwithstanding this, however, it would appear by the returns for which he was about to move, that although when the present Lord Chancellor came into office in November, 1830, 103 appeals remained undisposed of, constituting an actual arrear of rather more than the average of two years' business, yet at the close of the last sitting Lord Brougham left only thirty-five undisposed of, the earliest of which was set down on the 1st of February, 1834; so that, except two which had been abated in consequence of the death of parties, it might be said there was really no arrear whatever in the Court of Chancery. With respect to the House of Lords, the account would be equally satisfactory, for whatever hon. Members might think of their legislative labours during the present Session, the judicial proceedings of their Lordships merited great commendation. The number of appeals and writs of error had gone on regularly increasing, but there was now no case undisposed of where the appeal had been set down before the present Session of Parliament. In 1825, 1826, and 1827, the appeals to the House of Lords were 221; in 1828, 1829, and 1830,
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they were 214; while in 1831, 1832, and 1833, they amounted to 240. When the present Lord Chancellor came into office, ninety-four appeals were undecided; and at the present moment, only forty-four were undisposed of, the whole of which had been entered during the present Session, except two, which were adjourned at the request of parties. There was, in fact, then no arrear in the House of Lords. He trusted that this statement would be satisfactory; and he had no doubt the example thus furnished of attention and despatch in the highest tribunal would produce a salutary effect on all the inferior courts throughout the country. The hon. and learned Gentleman concluded by moving for a Return of the number of bills filed in the Court of Chancery, and appeals entered in the years 1825 to 1833 inclusive; together with the number of appeals undecided when the present Chancellor came into office, and of those undecided at the date of the last sitting.
Mr. Humesaid, nothing could be more satisfactory than the statement which had been made by the hon. and learned Gentleman, as far as expedition was concerned; but there was another element of great importance in relation to legal proceedings—namely, expense, which he hoped would not be overlooked. He was glad to see that a clear and convincing statement had been made as to the despatch of the legal business of the country, in order to meet, in the most decided way, the representations which had been made upon the subject elsewhere; but he should be glad to know in what proportion the expenses of suitors had been reduced by the operation of the late Reform.
The Attorney-Generalsaid, the new system had only come into operation in November last, and it would be impossible to make out any comparative return of the expenses until the year was completed. At the same time, however, he could assure the House, that the suitors had derived the full benefit intended by the change, and many abuses under which they formerly laboured had now been entirely removed.
The Return was ordered.

INCENDIARISM.
Mr. Aglionbyrose to call the attention of the noble Lord (Lord Althorp) to the case of an individual convicted at Warwick by Mr. Justice Taunton of setting fire to one or more

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stacks. He did not expect any remission of the sentence, nor was he aware that the case called for the clemency of his Majesty. Under all the circumstances of the case, he trusted, that though the person to whom he referred had been sentenced to endure the last penalty of the law, his Majesty's Government would see the propriety of not giving full effect to a sentence pronounced under a state of the law which attempts had been so often made to amend. The principle of a mitigation of the law had been fully recognized and sanctioned by that vote of the House in obedience to which the Bill was read a second time. He now much regretted that he had ever consented to withdraw the Bill; but, certainly, when he did so, it was in the full hope, that all cases, arising at the present assizes would have been viewed with leniency by the executive authority. He admitted, that no direct intimation had been given on the subject by the noble Lord opposite, but the silence of Ministers certainly led him to indulge such a hope. Feeling as he did a very painful solicitude on this matter, he begged to entreat to it the attention of the noble Lord.
Lord Althorpreferred to the admission of the last speaker that Government had given no intimation as to what course they might think it proper to pursue with regard to such prisoners as might be tried and found guilty at the then ensuing assizes; he was clear in the opinion that nothing could be more unjust towards persons accused, or more injurious to society at large, than that the law should be rendered uncertain by any discussions that might take place in that House, and he had expressed himself to that effect in reference to the Bill to which the hon. and learned Gentleman had just been alluding. As to the possible effects of that Bill, the hon. and learned Gentleman might make himself perfectly easy, for, considering the time at which it passed its second reading, it was utterly impossible that it should be carried through both Houses, and receive the Royal assent in the present Session. The hon. Member seemed to take for granted, that if a Bill were read a second time, that proceeding on the part of the House amounted to a sanction of its principle; technically speaking, perhaps, that might be true, but in practice it was well known to hon. members that the House often gave a Bill a
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second reading, without, by any means, intending to assent to its principle. He could not help observing, that remarks, such as those of the hon. and learned Gentleman placed his Majesty's Government in a painful situation; but, however distressing to his feelings it might be, it was impossible for him to do otherwise than declare, that no consideration would lead him to be accessory to the practice of rendering the law uncertain by means of discussions arising in that House.
Mr. Humesaid, that the object of all punishment was prevention, and that the most effectual mode of securing that object was, by causing penalties to accord with the feelings of the people, so that there should be no reluctance to prosecute, and by rendering them certain, unfailing, and expeditious. He regretted much that the Bill just mentioned had not passed into a law.
Mr. Ewartobserved, that many petitions in favour of the Bill were presented in the course of the present Session from persons who had been sufferers from the offence the punishment for which it was the object of that Bill to mitigate.
Here the conversation dropped.

SALE OF BEER ACT AMENDMENT.
Lord Althorp Lord Althorp moved, that the Amendments made by the Lords in the Sale of Beer Act Amendment Bill be agreed to.
On that Amendment relating to the power of visiting those Houses, with which constables were invested being read,
Mr. Humeprotested against domiciliary visits, and said he should divide the House.
Lord Althorpsaid, he should have been better satisfied if the right of entry had been limited to one hour after the time appointed for shutting up the houses, still he should support the Amendment as it stood.
Mr. Thomas Attwooddenounced the measure as tyrannical, as the result of old women's talk, or men like old women, who went up and down through the country circulating idle stories about drunkenness and immorality.
The House divided: Ayes 29; Noes 12—Majority 17.

List of the AYES.

Advocate, the Lord

Ashley, Hon. H.

Althorp, Lord

Attorney General, the

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Baines, E.

Pinney, W.

Berkeley, Hon. C.

Rice, Right Hon. T. S.

Blamire, W.

Ross, C.

Brodie, W. B.

Rolfe, R. M.

Childers, J. W.

Scrope, G. P.

Colborne, R.

Shappard, T.

Davies, Colonel

Stanley, E. J.

Elliot, Hon. G.

Torrens, Colonel

Howard, P. H.

Tracy, C. H.

Littleton, Right. Hon. E. J.

Williams, T. P.

Wood, G. W.

Maxwell, J.

TELLERS.

North, F.

Baring, F.

O'Grady, Hon. S.

Mackenzie, S.

Palmerston, Lord

List of the NOES.

Aglionby, H. A.

Phillips, M.

Carter, B.

Potter, R.

Codrington, Sir E.

Warburton, H.

Ewart, W.

Wilks, J.

Hawes, B.

TELLERS.

Hill, M.

Attwood, T.

O'Connor, F.

Hume, J.

O'Reilly, W.

The Amendments were agreed to.

MINUTES.
Bills. The Royal Assent was given by Commission to the following Bills:—Assessed Taxes' Relief; Exchequer Bills; Public Works'; Starch &c. Duties' Repeal; Spirit Duties'; Bank of England Debt; Poor-Laws' Amendment; Court of Chancery (Ireland); Payment of Creditors' (Scotland); Insolvent Debtors'(India).—Read a third time:—Church Temporalities'(Ireland); South Australia; Sale of Beer Act Amendment; Consolidated Fund; Burghs'; Royal Burghs' (Scotland); Registration of Voters'.—Read a second time:—Courts of Equity.
Petitions presented. By the LORD CHANCELLOR, from a Number of Places, for a great many different objects.

JOINT-STOCK BANKS.
Lord Wharncliffewished to draw the attention of the noble Viscount opposite to a subject of considerable interest—he alluded to the establishment of Joint-stock Banks throughout the country. At the time when the measure authorizing the formation of such banks was under discussion, he understood that a deputation of bankers had waited on die Chancellor of the Exchequer, to inquire of him whether it was the intention of Government to regulate those new banks in such a manner as to require, that before they proceeded to do business a sufficient capital should have been paid up. The mode of proceeding was this:—A bank was advertised, with, say 700,000 l. capital, whereas, in point of fact, not the one-tenth of that sum was subscribed. This was a delusion on the public. But, not satisfied with this, these joint-stock banks were establishing branch

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banks throughout the country, the effect of which was extremely detrimental to private banks which had been previously in existence; and he might add, to the business of the country generally. He understood, that at the interview to which he had alluded it was asked, whether Government meant to adopt any regulation to insure the sufficiency of the parent bank. Now, what he wished to know was, whether any regulation of that kind had been made, or was intended to be made, by Government,—a regulation that should make the branch banks stand upon the same footing of liability for their respective issues as the parent bank?
Viscount Melbournesaid, he believed the system to which allusion had been made was not only injurious to other banks, but to the community at large. He was aware, that within the last month or six weeks symptoms of inconvenience had been manifested. But Government had not received any information that the circulating medium in the country had been increased by the issues of branch banks to any dangerous extent. Some regulation on the subject was, he conceived, necessary; but he was not prepared to say what that regulation should be. The subject was, certainly, one of importance, and the serious attention of Government should be directed to it during the recess.

APPELLATE JURISDICTION.
The Lord Chancellorrose to lay a Bill on their Lordships' Table relative to the Appellate Jurisdiction of that House, which he should have presented before, but for the extraordinary pressure of business. The object of the Bill was, to effect an alteration in the judicial system of their Lordships' House. The necessity for such an alteration did not arise from the judicial business being in arrear, for never, at any period, was there so little business in arrear as at present. He had offered every facility to all parties to hear their causes, and there was not then a single Irish or Scotch appeal in arrear, which was entered before the month of February last. Now, he had known the business of seven, eight, or nine Sessions to be in arrear. He had sat sixty days this Session, and had heard about sixty causes. Some of the English and Scotch Appeals were of very great importance, and involved points of great difficulty. One of them had occupied three or four days in the hearing. He
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was glad to say, that he had finished the case of "Lewes and Morgan," a very old case, and one which had been before their Lordships three or four times. It was not, therefore, on account of any arrear in that, nor was it on account of any fault on the part of the Court of Chancery, that an alteration was necessary. With respect to the Court of Chancery, scarcely any causes remained undecided there. He had sat for the last five weeks, indeed he might say for the last six or eight weeks, and there remained only six cases entered before the month of June, and seven or eight entered since the month of June. The necessity for an alteration rested, then, on a different foundation. The manner in which appeals were heard involved a very serious grievance, both as regarded the judicial character of their Lordships' House, and the interests of the suitors. When the first hearing of an appeal came on, two noble Lords sat and assisted at the opening; two others attended the hearing on the other side. On the third day two noble Lords, who had not been present before, came down and heard the reply. The cause was then set down for judgment; and in the fourth instance two noble Lords assisted at that judgment who had not heard the beginning, the middle, nor the end of the proceeding. Such a system was not in accordance with common decency either to noble Lords who were thus called in rotation to assist in appeal cases or to the suitors whose interests were to be considered, or to the House itself. The anomaly of appealing to the Chancellor in that House, with reference to causes which he had previously decided elsewhere, had so often been stated on various occasions that he need not go into great length on that point. He had now been sitting for the greatest part of this Session on English and Irish appeals, and he had been obliged to postpone for two Sessions several of those causes, because they were appeals from his own judgment. He was anxious to obtain the assistance of Lord Plunkett or the Lord Chief Baron; but as he could not procure their valuable aid, he was compelled to hear those appeals himself. There were fourteen or fifteen appeals in deciding which he wished to have that assistance; and of these ten or eleven were appeals from his own judgments. Now, he had not the least degree of bias in favour of any judgment that

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might have been given by himself; and if proper cause were shown, he would be ready to alter it. His affirming a judgment of his own in that House did not make the point right, if the decision were originally wrong. Professional men would see, and would mark the error. But what he looked to was this,—that by affirming a judgment he gave it the force of law, and nothing but an Act of Parliament could alter it. That being the case, he would ask, whether it was proper that an appeal should lie to any one single Judge? Whether, for the purpose of insuring a right decision, of commanding confidence in that decision, with reference to the suitor, the public, and the profession at large, and of obtaining uniformity in decision,—whether, for the attainment of these great purposes, it was not absolutely necessary that a Court of Appeal, consisting of more persons than one, should be established? The law assumed that such a court did exist, because it made all their Lordships hereditary Judges of Appeal. In common law cases they called in the Judges; but in equity cases, English, Scotch, and Irish, this was not the practice. The defect of the system might be proved by a single instance. Suppose a decision of the thirteen Judges of Scotland appealed against. It was taken from those persons who understood the Scotch law, and was to be adjudicated by a single individual, who perhaps was as ignorant of the law of Scotland as of the law of Japan. Was it likely that his unassisted decision could give satisfaction? There was much truth in the homely proverb, "Many heads are better than one." This was clearly borne out by the entire success of the judicial committee of the Privy Council. The second case tried before them would have been decided the other way if any one of those who formed the Committee had considered it alone. But the Judges laid their five heads together, and the consequence was, a unanimous judgment directly contrary to that which any one of them unassisted would have pronounced. These were his reasons for desiring some modification of the existing law. He would now allude to the difficulties which he had to overcome in effecting any such modifications. The first was the repugnance which he had naturally felt to alter the jurisdiction of their Lordships, and the next was the small number of Judges from whom he
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could select a certain number to hear appeals; for he held it to be indispensable that appeals should be decided by Judges taken from other Courts, and not by Judges appointed for the express purpose of deciding such cases, and forming a separate and exclusive tribunal. The example of France, where there were two Courts exclusively for hearing of appeals—namely, the Cour Royal and the Cour de Cassation—proved nothing, for there was such a vast number of inferior Judges in France (fourteen or fifteen hundred), and they were of such an inferior class that it would be most injudicious to call upon them to sit in appeal. He thought that Judges who were only Judges of Appeal would not be fit for anything. What would the Lord Chancellor be worth as a Judge, if he sat forty or fifty days in the year to hear appeals only, without being accustomed to the forensic strepitus, as it were, and without having heard the business done in the first instance, which afterwards became the subject of appeal? There never would be a Court of Appeal worth anything, unless the Judges composing it sat also in the Courts below. On the one hand, it was necessary that the Judges of the Court of Appeal should not be those whose decision was appealed against; and on the other, that they should be accustomed to preside in the Courts below. There was but one middle course to take, and that was judiciously to compose a due admixture of the various judges with those whose decisions were appealed against,—thus proceeding on the principle of analogy to the Courts of common law. When the Court of King's Bench, or the Court of Exchequer, or the Court of Common Pleas went wrong, an appeal was made to the other common law Judges; and so when all these Judges went wrong, an appeal took place to the House of Lords, which sent for the Judges; who intermixed with the equity Judges, and applied their minds to the subject. It was upon this principle that the judicial committee of the Privy council was constructed, and upon the same principle he would proceed in the change he was about to propose; and as in the former case the Royal prerogative was left untouched, so in the latter the jurisdiction of the House of Lords would remain unimpaired. The judicial Committee of the Privy Council consisted of Judges, selected by rotation,

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of whom there were never less than four present. They decided the appeal, and reported their decision to the Privy Council, where judgment was given by the King in Council precisely as before. This, he repeated, was the principle upon which his Bill proceeded. It would give their Lordships the power of calling for the services of the Judges in equity, and of directing any case in which an appeal might be resorted to, to be tried by a judicial Committee to be appointed under the Bill. This judicial Committee would pronounce its judgment ill open court, which would be reported to the House, and then the House would pronounce its judgment in open court. The rights and dignity of their Lordships' House would be preserved inviolate as heretofore. He proposed that the Judicial Committee should always have presiding over it either the Lord Chancellor for the time being, or the Chief Justice of the King's Bench; or a new officer, a Vice-President, without salary, to be appointed by the Crown, and to hold rank next to the Privy Seal, and who must previously have filled the office of Lord Chancellor, or Lord Chief Justice of the King's Bench, or of the Common Pleas. The Vice-President, however, would only be called upon to act when the Lord Chancellor, or the Chief Justice of the King's Bench might be prevented from presiding in consequence of being engaged elsewhere. Thus, then, the judicial Committee of the House of Lords would consist of four Judges, who would be presided over by the actual or late Lord Chancellor, or the actual or late Chief Justice of the King's Bench, or of the Common Pleas. He wished it to be observed, that no part of their Lordships' jurisdiction would be taken away by the change which he proposed. He should, indeed, be sorry to see any measure adopted which could in the slightest degree operate to the disparagement of that House. He was always ready to bear testimony to the value of the House of Lords, which he considered an integral and necessary part of the constitution. No impartial man who had watched the proceedings of the last two years could have failed to perceive that if there had been no House of Lords, the House of Commons must have stopped its legislation, or if it had worked on, it would have been covered with blunders and absurdities. He spoke with all due respect for the House of Commons, for
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which he felt veneration. It was not their fault that they committed errors, they must of necessity do so. With the competition which prevailed amongst 658 men, who were constantly striving one with another, it was impossible that the details of measures could receive the same calm and deliberate attention which they obtained in their Lordships' House, where none of those distractions prevailed. The noble and learned Lord then adverted to what he called the notable clause in the Justice of the Peace Bill, which the Commons insisted upon retaining, as a proof of absurd legislation. Their Lordships had improved that and several other measures, and if when they had the knife in their hands cutting away the rotten parts, they should sometimes happen to go too far and cut off the head, of which there had been a recent example, allowance should be made for them. If a surgeon should cut too far, or not in the right direction, who would be so ridiculous as on that account to propose to blunt his knife, and prevent him from operating at all? Before he sat down he wished to state his reason for not proceeding with his Bill for separating the judicial and political functions of the Lord Chancellor. When he came to consider the subject at Easter, he found that he had no arrears of judicial business, and therefore he felt that with respect to that Bill, he had no ground to stand upon.
The Bill laid upon the Table, read a first time, and ordered to be printed.