The British Press; or, Morning Literary Advertiser.
London, England, 1824-03-10 00:00:00

APPELLATE 'JURISDICTION.

Lod CALTHOIRPE observed, that he would take that oppor-
tunity of adverting to the appointment that had taken place with
reference to the judicial authority of the House, which, in his opt-
'don. deeply involved its character and dignity. He had heard the
arrangement censured in the House, but out of door' he hail heard
only the rnrert unsparing obloquy cast upon it; mod he could not
but remark that that obloquy was justly thrown out, for the only
argument that be had !ward ventured in its favour by its most de-
cided supporters was Olt the score of convenience. If convenience
had net been the object, front all he knew and had heard on the
subject he was convinced that the appellate jurisdiction of the
!louse would never have been placed on its present footing; for the
first circumstance attendant on the commission was the appointment
of an inferior Judge to preside over the highest tribunal of the
reedut in the absence of the first Judge. This was an anomaly
which must inevitably degrade the !louse, in the exercise of its ju-
dicial functions, in the eyes of the country, and was not only dan-
gerous in its consequences, but derogatory to the dignity of their
Lortbibitee proceedings, and tended to lower the public respect for
that brincli of the legislature in its judicial character. Ile was
far Boni wishing to depreciate the qualifications of the learned Lord
(Giffin!) who had been appointed to preside on the woolsack in the
absence of the Noble Lord who was then sitting there: but it was
not depreciating his merits to say that he was new to the basiness,
and wanted experience; fur he could only be considered on his way
to that tulntwe of legal knowledge which their Lordships had been
emus:on:eel to find in the Noble and Learned Lord on the woolsack.
There was another anomaly in this arrangement, which might not
only in many cases be inconvenient, but which might be regarded
as an improper, and in some instances a dangerous precedent.
Ever) regulation has carefully guarded against an appeal coming
from a superior to an inferior Judge; but by the present appoint-
ment that would be the case in some instances. This, as far as
it Concerned judicial proceedings, was an imperfection that would
tend materially to militate against the dignity of the Howie, and
the respect that suitors at their Lordships bar ought to feel for
them in their capacity as Judges. But he would ask, independent of
t coesideratioo, who were the Noble and learned Lord's judicial
colleagues ? They were not ticketed for their peculiar knowledge of
the causes to be tried; for in most instances they did not hear the
whole of airy one ease; as the regulation seemed to go on the suppo-
sition that the slime Noble Lords would only attend one day. Ile
was aware that they might attend every day, but in point of fact
that did trot appear to be contemplated by the projectors of the
arrangement; ueulter could it be expected, for an attendance of
silty Peers could hardly be procured tinder any circumstances, or
to deliberate on any subject. Ile knew that the regulation did
not preclude Peers front attending in their places to hear appeals :
but if they did attend it was not in accordance with, but rather
In defiance of, the arrangement. Ile could not avoid expressing
his !pinion that the arrangement would tend to lower the
judicial authority of the House; and it was for their Lord-
ships to consider (and an important consideration it was), whe-
ther they would run the risk of incurring, in their judicial raps-
cry, the discredit this measure might bring upon them. Day after
they, is their legislative character, the (louse met for the purpose
of adjourning : at the commencement of a Session, and during the
last quarter of a Session, so far from the House tleipoeing of mai-
sera that came front tire other House of Parliament with due
liberation, they were conitoilled to throw them out or subject them-
selves to the charge of a want of due ouneiderntion in pulsing them ;
and here he could nut avoid alluding to the custom that had arisen
as to certain bills nut being allowed to originate in that House. lie
dad cot wain to originate any Bills that it was the peculiar province
of the other House of Parliament to propose, but he alluded to
to se that could not strictly be considered as bills for levying mo-
res : at d the advantage of a change with regard to those bills
mom he ithiversally allowed, as some of the most useful enact-
swab originuting with their Lordships had been stopped by tr.:
traistenee of a pci,alty that they had no power to escape from. This
vOl beyond the strict intention of the l'onstitution„ and far beyond
the whnlesunie jealousy that the other !louse of Parliament ought
to exercise. He did not wish to pass any censure on the House of
Commons for *vire upon their present system. The evil had
bun of idow grovels. and their Isintshies were equally responsible
for its existence with the other House of Parliament. He had no
Irish that any encreethments should be made on the authority
of die other branch of the legislature ; but the mthlic were
seriously inconvenienced by the undue jealousy it evinced
towards that House in originating Bills, and from the quantity
of belle (arising in • great measure from that cause) coating
front the Hoare of C 01111,10015 at the dose cf a aeries, their
Lordships had no alternative but to reject them, and therefore the
;waren of Parliament was not half done. This haste at the con-
ch:snot of a session, not merely had the effect of injuring the
authority and dignity of that and the other House of Parliament,
bat was inteenievoue to the best interests of the country. The great
advantage of that )louse was that it was a check to the impetuosity
et the other branch of the legislature, and that it with more calm-
ewes would deliberate on uteanstree than a tram popular assembly
tined do. All the subjects of the country ought to enjoy the benc-
Ft of its taking the full share of legislation that belonged to it; for
the removal of wealth and rank from the legislative deliberations of
the country would be attended with the most serious cor.sequences
to eve:y class of the eyt . imunit y.
The Earl of !ALP( X IL fe't it necessary to say a few words
in itritWer to the observations of the Noble Baron, which he must
remark had ro reference to the subject of the Clerk of Parliament;
bat it was impossible for him to let the first part of the Noble'"
lent** vbs. relltio.ol lass,niutiVe to the appellate jurisdiction, for
bjlappc-ired to have .aken a must extraordinary view of the
qceettois, and to have t:rawn conclusions that were not at all
warranted by five. He hoped, however, notwithstanding the
eeip,teenie o.' the Noble Itania, their Lordshipe would allow the
',v. le. to work, and not hastily give it up, fur he believed it would
Iry eitcoded with :Ire nowt beoehcial edicts. Ile begged to remind
t..ett Lor!slios that it was nut without long and serious inquiry
ti..st the sesangewelt was adopt. d, and it was in consequence of the
own her of ay:ells that were before the House, and the impossibility
alp dung justice to the eubjeces of the country, without adopting
sortie course to expedite the bearing of eppenle. Front the
--- nos oh' the Noble Baron, it might be interred that the
'meet had been made without dim co isideration; but
ild re'er to their Loritsitips' recollect+ n, if it dial not meet
.e most ottature deliberation. Did eh: it le inieltips take the
,shy piece-meal? The contrary every NoMe lewd knew was
t. fire question had been referred to a s:lect committee of
,ordshipe House, which was composed of all parties, and
whom the whole question was laid, litany members of which
west cognioint with that part of the Cnited Kingdom which
.oveitient in question was principally intended to relieve, by
of the inoneuee accumulation of appeals that had accrued
t. A Ace long consideration, the Committee pro,sweil the
in question, which, after the flatten deliberation, al:hough
Id sd Mt ibere sass ditterenee of opiiiiun upon it Et the close
r detribA. it was aweed upon. The Noble Lord haul said
reamstances would prevent Peels from giving their opinion
tally to SllitOnl at their I.ords'airs' bar ; but he would say
• House were wily doing an at of justice by forming the
neat they had done, for whatever difference of opinion
;eat he as to the pennaneat system, someihing ntust
dune to get rid of hie arrears ed. appeals that had

aceamulated. The Commission that had been appointed
to consider of the administration of justice in Scotland might be
effective; Int let it answer the most sanguine expectations of its
most zealous supporters, how were they to get rid of the existing
arrears? Ile would defy the Noble Baron to point out any other
tootle that could be adopted that would answer the purpose for
which it was intended better than the plan now acted upon. The
promoters of the measote had been ready, both in and out of the
Committee, to attend to any suggestions that might be proposed,
that would be likely to further the object they had in view ; but
this plan appeared to be the most effectual that could be devised ;
and from the short experience their Lordships had had of it, they
bad every reason to be satisfied with it. Ile knew not what cha-
racter the arrangement might bear out of doors, amongst those who
must necessarily be totally ignorant of its operation ; but he could
assert that it was working well, as every man knew who was
acquainted with it. With regard to that part of the Noble Lord's
speech, when he spokeof the insuring the attendance of Peers, he
would maintain, that whether three. thirty, or three hundred Peers
were present, the House was equally competent to come to a de-
cision in its judicial capacity. But the Noble Lewd must recollect
that whenever, and as often an they chose, Noble Lords might take
their places in the House to hear all or any appeal uses that cause
before it. The present was not a new arrangement as to numbers.
In that House there must be three members to constitute a Mouse,
and in the other forty were necessary ; but it did not follow that
those members must decide upon all the questions that came before
them for that day ; but the object of that arrangement, with regard
to meusbers, was to set the proceedings going. Sonic of their Lord-
ships were aware that a Noble and Learned Lord had precluded
' himself from the obligation of attending, in consequence of his
being above the age at which Peers were exempted from doing
their duty in Parliament, and his name was not on the book ;
still that Noble and Learned Lord, it was well known, came
down very regularly and took his seat to hear appeals. The
House was to consider if it would be advisable to give up • me&
sure that secures: • House eatery day, under the severe pressure of
arrears that required their Lordships early and earnest attention, or
l leave that urgent business in uncertainty as it had been before left,
to the inconvenience of every suitor who bad an appeal to bring to
their Lordships' bar. 11/.1 Lordship sincerely hoped, for the credit
, and honour of the House, they would give the experiment • fair
trial.

Lord CA ',THORPE explained.
Lord lIOLLANI)said that he did not mean to prolong the con-
venation, but it was incumbent upon him to say a few words in
imply to what had been said by the Noble Earl. It was perfectly
true that the subject to which the Noble Baron had adverted, had
been considered by that House, and it was found that great diffl-
' cultic* were involved in it. He must say, that when he came to
consider that question, he had no hesitation in pronouncing it the
most unparliamentary proceeding he had ever witnessed in the
whole of his experience in that !louse, end one that militated more
against the honour of Parliament than any other within his recoi-
-1 lection. It might be nattiest for the convenience of suitors, but it
was the firet time in his experience of the judicial proceedings of the
House, that justice was limited and lotted out by • few, when it
was the duty of all to deed it out. By this measure, the judicial
functions of the House, and, through them, the Constitution itself,
were laid pne orate. In the first instance, members were called one
be one to discharge that duty, which duty belonged to all. For
himself, he did not object to take his share in hearing the appeals
that came before the House; but he objected, to this or that
man being called upon to perform a duty which belonged to all.
For • deliberative assembly, like the House of holds, the very
essence of whose functions was to discuss and decide on measure
collectively—to have its members ealled upon in detail to exercise
their meat important functions, was attacking the very frame of
the Constitution ; but convenience was the ratio saidwria, rati,, jos-
tlflealuria, for the measure. Afterrefiecting upon the arrangement,he
was decided in opinion that it would be much better to trench on
the Constitution, and make the Commission permanent for Scot-
land, rather than adopt a principle that would sap the foundation
of that House. It was perfectly true that the Peers who sat on
appeals now as they ever had, would have lawyer to guide their
judgment, and for consultation, to whom great deference wart:Olen
paid; but their Lordships should recollect that when they took
their scats in that Ilouse in their judicial annuities, they were to
decide upon the merits of every cause that came before them, as
much upon their own judgments as when they were sitting in their ,
legislative capacities; and he could not admit of any distinction be-
tween learned or unlearned Lords. The Learned Lord on the
Woolsack and Noble Lords on the benches were Puree in
Yarlia-
seeela ' • and it would be derogatory to the character of the House
to tell the people who came to their bar for justice, that one
l'eer heard and another decided their causes. tied forbid that
that should be the case; but the arrangement gave the people an
opportunity of saying so. It would enable them to say that the
House was composed of persons, some of whom were compelled
on Monday, and others on Tuesday, to attend to their causes by
piece-meal. Practically there was no great alteration or injustice in
the operation of the ;rem, but It was an exposure of the incom-
petence of the !louse In its judicial character. Having given much I
time to the consideration of this question, he could nut avoid offer-,
ing his opinion upon it ; he was defame of making these remarks I
because he thought them due to the Noble Baton who introdecod
the subject a ith great propriety. He was neatly to bear testimony,
as far as his information went, to the accuracy of the statement of
that Noble Lord as to the general dissatisfaction crested ont of
doors by the system pursued at present respecting their Lordships'
judicial functions. He hoped, by the completion of the object of
the Commission for inquiring into the state of the Scotch Courts,
their bonlships, at no distant period, might return to the whole-
' some courne they had, until this Session, pursued; and in the mean
tints he could not help remarking that that man would deserve
well of the House and country who would bring forward a legisla-
tive measure to regulate the appellate juristlictum of Scotland ; by
which toe anomaly would be done away with of one Judge hear-
ing and another deciding MIMS.
The Earl of ITARI(OWBY observed, that the whole question
was taken up wrong by the Noble Lord opposite. The object was
first to get rid of the causes that Were an arrear, and then they
might come to the general arrangement ; but that something was
necessary to be done to reduce the arrears no Noble hoed could
deny ; and that the system had worked well as far as it had gone,
was in some degree proved by nineteen causes having been disposed
o(since its operation. With regard to the Dumber of Lords sitting,
on appeals under the new system, he would merely observe, that
every Noble Lord might take his scat in the Howie, and se to the
number who used to attend under the old regulation, it was not
more notorious that their Lordships sat at IVesuninstev, than that
the number of Peers who attended on appeals were only just suffi-
cient to make a House. Ile would entreat their lordships also to
consider of the hardship to suitors having occasion to ft* Coun-
sel to come down to the bar, and on their arrival there found that
a noun could not be formed for want of Members. AU this was
avoided by the present mystein, and it must be a moat satisfactory
alteration to appellants. The Noble Cord hail spoken of the ab-
surdity of Peers canting in in the middle of a cause only ; but he
should remember, if they were desirous of informing themselves they
would attend the whole of it. Ile would ask the opponent of this ar-
rangement if the general incompetency of the House to make a deci-
sion on questions connected with their judicial functions was not just
as much or sa little known before as it was now ? Ile thought the
Noble Lord on the Woolsack entitled to the thanks of the House for
having provided a Noble and Learned Lonl, who wait in every re-
spect so competent to take his place. As to the Noble and Learned
Lord's not being acquainted with the forms of the House and all
the duties lie had to perform in his now situation, the same
might be urged against a Chancellor the first time he took his scat
on the Woolsack. It was in the common course of events that
there must be new persons at different times in all appointments. '
Earl 1).1R NLE Y said he did not rise to prolong the converts-1
tion, but merely for the purpose of adverting to what had been said
respecting the legislative functions of the !louse. Ile had urged
the Noble and learned Lord on the Woolsack to wipe away the
stain that the loos,: mode of legislation complained of left on the
I House. As an humble individual he had urged this in vain, but
he entreated sonic Noble Lord opposite, who hail more influence
than he had, to submit a motion on the subject, and prevent the
discredit that attached to the House at the beginning of every See-
-1 sion, when it Oct day after day only for the purpose of adjourning.
At the latter port of the Session it was equally disgraceful to :be
!louse to reflect how the busineuthat came benwe it was disposed of.'
It would he most desirable it' the Noble Earl opposite would consi- '
tier whether some measure could not be adopted that would not
trench on the privileges of the other House of Parlianient.