The Sun.
London, England, 1856-07-08 00:00:00

ties of Lord Cottenharn, Lord Broug,hem, Lord St. Leon-
ards., Lord Campbell, and Lord Langdale, who, at differ-
ent periods, have recordei their opinion against the
present system, and recommended changes, any of which
would be better than that now proposed. Tnis is al
usurped jurisdiction on the part of the House of Lords,
;led it Was so charactaiiseil by Lord Hale, Lord Holt, and
Lotil Noiingliani. It was a jurisdiction originally exer-
cised by the King and his privy councillors, and a deci-
sion was arrived at, bat not through the Lords. Sir, of
two things one must be done. Either the House of Lords
proprio tigore,must endeavourto amendtheirjurisiliction;
or, failing in that, they must frankly, openly, and honour-
ably, and with a view to the public good, abandon a duty
Which they cannot satisfactorily discharge. (Hear, hear.)
It has been suggested by many high authorities that it is
quite a rupetent for the House of Lords, without our
intervention, to endeavour to amend their jurisdiction.
I believe they have the power to summon, not only the
common law and equity judges, but members of the Privy
Council ; and I Cannot see why, at the commencement of
each session, the Lord Chancellor could not wake a classi-
fication of the cases to come before them and refer those
to common-law and equity Segch judges and privy coun-
cillors. If that be found insufficient I know of no remedy
within themselves which would lead to a more satisfactory
solution, and nothing could remain but for them to aban-
don their jurisdiction. But of this lam sore, that
things cannot go on as they do now. The public and
the profession will not a!low it. Sir, the House of Lords
is an assembly of politicians, :end it is wonderful to
expect that Chancellors and ex-Chancellors who meet
to debate in the evenings, sometimes with great
keenness and bitterness—(a laeg'l)—sliduld meet in the
morning. to agree in their judgments as if nothing
had happened. (Heel-, hear, 2..n(1 a laugh.) Lord St.
Leonards, in his able work on real property, says
that to the science of law nothing is so injurious as (rebates
on the law. And yet, in his honest eagerness, that noble
and learned lord has broken thi oneh his own rule, and de-
fends his own decisions with remarkable ability and keen-
ness. (Hear, and a laugh.) I can give illustrations of
the action of this political influence. There was the
O'Connell case, in which the hon. and learned member for
Enniskillen was counsel for Mr. O'Connell. Of the nine
common-law judges, seven were in favour of the convic-
tion, and two against it. The case came to be decided by
the law lords alone. The hon. and learned member for
Suffolk was counsel for Mr. O'Connell ; but I believe we
have his opinion that if it had been the case of an ordi-
nary mechanic the judgment would have been pronounced
the other way. Vice-Chancellor Stuart has also given the
opinion of my late lamented friend Sir Wm. Follett, that
the souse of Lords on that occasion impaired their juris-
diction, in a manner never to be restored, by failing to put
aside their political bias and upholding.the opinion of the
majority of the judges. (Hear, hear.) Then there was
the case of the Irish marriages. Ten out of the twelve
judges in Ireland pronounced an opinion, and that opinion
was upheld by the English judges; but it was by pure ac-
cident that that judgment was upheld by the House of
Lords, as there was an equality of voices, and no judgment
at all was arrived at—(hear, hear)—so that, literally, the
decision was reduced to a matter of chance. (Hear, hear.)
There was also the Bridgewater will case, in which eleven
judges were called in. Nine out of the eleven agreed with
the Lord Chancellor, and the Chancellor having decided
in his own court, backed by nine judges, his judgment was
reversed by the voice of four ex-Chancellors. The Scotch
cases are more remarkable still, and this bill does not pro-
vide a remedy. But if there is to be a Scotch deputy,
what would the people say to his deciding on matters
affecting one-third of the property of the kingdom ? True
it is open by the bill for the Crown to appoint a Scotch
lawyer. But what is the administration of justice in
Scotch appeals? Lord Erskine, after he had been raised
to the Chancellorship, frankly declared that he knew as
Much of the law of Scotland as of that of Mexico. My
Lord Truro—than whom a more houesto upright man never
filled the seat of justice— (hear, hear)—and who posse-sed
a quality even more precious than learning—the strongest
possible love of justice—(hear, hear)—was not ashamed to
own his imperfect knowledge in this respect where justice
Was at stake. (Hear, hear.) Lord Truro sat by sad
compulsion for a whole session hearing Scotch appeals
alone ; and, at the commencement, such was his deficiency
with regard to the ractice recordine Scotch entails that
he borrowed an elpementar book olipthe subject to taee
home with
him.
. The SOLICITOR-GENERAL.—That was on an Irish
aPPeal.
Sir J. GRATIAM.—Lord Truro was sitting in equity,
and all his life he had been a common-law lawyer. (Hear,
hear.) He sat for a whole session on Scotch appeals, and
Such was his sense of justice, that during all that time be
did not produce a single judgment. (Laughter.) The Lord
Justice-General of Scotland, in answer 1033, declares that
appeals to the Hearse of Lords are undertaken on the spe-
culation as to the character of the tribunal at a particular
time. The Lord Advocate, whom I see sitting here, has
stated that ho has heard things avouched at the bar in the
House of Lords is the law of Scotland which the youngest
member of the House of Commons would be ashamed of,
and that agents did not look to the merits of cases, but
speculated as to the light in which English lawyers would
view them. It is Said that a Lord Chancellor, who pre-
sided on the woelsick for years, with entire satisfaction to
the people, pronounced judgments most consistent with
justice, and redundant with learning. He kept his own
counsel, but at last the mode by which he arrived at his
decisions transpired. The Lord Chancellor said that after
hearing a case he always retired to his closet before pro-
nouncing a decision, and he acknowledged that he affixed
iv-number to the oases pro and eon, and having thrown a
dice decided according as the numbers turned up. ("Hear,
hear," and laughter.) Now, sir, it is to chance and spe-
culation that we are asked to give our sanction. The re-
formatory procese has been commenced by the Lords them-
selves, but I think that an inquiry into the appellate
jurisdiction in the list resort would still be a useful and
honourable employment. (Hear, hear.) If this bill be
delayed by inquiry, we may remember that the session is
drawing to a close, and that the appellate jurisdiction will
not be called upon to decide upon appeals for some months
to come: I have been asked to sketch a scheme of im-
proypeaaat by .iivnich the intervention of the House cf
Cornations may ,be avoided. But if legislation be necessary
let its begin de,novo, and consider how an efficient tribunal
can be in-tituted. As b tween my 'vote for delay and for
the bill I have no hesitation. If lam driven to it I shall
vote against the bill ; but perhaes, on the whole, it will
be butter to support the motion for a committee of in-
quiry. (Loud cries of ‘• Hear, hear.")
Ml. ROUNDELL PALMER said the arguments which
had been advanced in support of the bill were sufficient to
justify bins in any opposition which be might give to it, if
he felt so inclined. He considered however, that the sub-
ject waa one7that urgentlyrequired legislationond although
he thought the bill' was weak iu its details, yet he believed
they,*ere open to amendment, and if they were to go to a
division on the principle of the bill, he must give it his
Ruppert. He .did not believe the exaggerated representa-
tions as. to the defects of the jurisdiction of the House of
Lords, although he was free to confess that there were
many thlfects in it? They should reflect that they had to
deal not with a mere question of prerogative, but with the
question of the interests of justice, with the necessities of
having 'courts of final appeal, which should be satisfactory
to the suitors and to the public ; which should maintain
the independence of the judicial system, so that such a ju-
dicature might bo enabled to stand at the head of the ju-
dicatories of the kingdom. The choice lay between the
removal of the power of appeal altogether from the House
of Lords, or the appointment of officers of a new class such
as the bill proposed. It wastheir first duty to consider the
effect the bill would have in the administration of justice.
On that point of view he should approach the qUestion.
Such he believed would be the real alternative, but as re-
garded the principle of the present measure he would not
ta!:e r the alternative. His hon. friend had proposed to
classify the casen of appeal into Scotch, Irish, colonial and
so ou, and would constitute a committee of Scotch and
Irish lawyers, equity and common law lawyers, and dele-
gate to them the appellate jurisdiction. This was to give
-the`determinatiion of the appeal to the very judges from
wheel the apptaal lay. If this was the case, they would
not want any court of appeal at all. Thera was already
-the Court of Exchequer Chamber, which would answer
the.same purl?, ise. This principle was simply that of solv-
ing the difficulty by cutting the knot, and saying that no
court of appeal, was wanted at 'all, and that everything
could be (lone 'by courts now sitting. There remained the
removing the appeal to the Judicial Committee of the
Privy Council,. Now that committee was composed of
judges who bald their teunre at the,pleasureof the Crown.
The effect therefore of constituting this appeal in the
Privy Cour-is:it would be this—that the judges of ultimate
• appeal would be removable at the pleasure of the Crown.
So that, while all the lower steps were independent of the
Crown, the. highest court of appeal would be dependent on
it. This might appear to be a mere question of form, but
such questions were liable at any time to big turned
slnto s questions of grave political importance. There
was this practical objection to the proposal—that you
meet first destroy, and then reconstitute the Judicial
Consnaittee of the Privy Council—a court the merits of
which the country bad long acknowledged. A new court
must be constituted, exercising 'new judicial powers. Now
in framing a new court, they must bear in mind the diffi-
culties of constituting a new court of appeal for our colo-
nies.. When the conetitutiors of those colonies was first
framed, there was nothing unconstitutional in the Court
of Privy Council as .a court of appellate jurisdiction from
_the colonies. But if they were to create a new court, there
'would exist serious &dr notions on the part of the colonies
, :to tills new court of appeal. Then, again, after all, was
the traditional respect for the judicial power of the House
of Lords so utterly baseless, and was there nothing in the
courtiof appeal being connected with one of the great
branches of the Legislature? Did the judicial system suf-
fer from having its root in, the House of Lords—so inde,
pendent of all ber influences whether of the Crown or of
anyeither ? He believed that the judicial system gained
Su dignity, vigour, and stability from its association with
the House of Lords; while that house gained equally in
dignity and stability from its association with the court of
ju icature, He could not help asking the question, if
they could establish a court of appeal in the House of
Lords, would it not be better to try to do so than to ven-
ture
_ on new experiments elsewhere ? As to the bill itself
'hoes right hon. friend objected to the bill on two grounds
f principle, which were these : the manner in which the
question of life peerages was dealt with, and the recogni-
tionb
of the practice
he practice involved in the present judicial consti-
tutiott fthe House of Lords. As to the first, they were
me
• ti
cross
arguments. On the one side it was urged
.eerat; g"cno powers to the Crown in the creation of life
togative
ges.'and on the other that they diminished the pre-
taltner) was G
by limiting
e these peerages. Now he (Mr. R.
, right to
opinionlepeetrhaagtest.he
uCnrotwilnthheadhanteudnedboautebtneod
• doubt was sate
toastitin ardent now as ever expressed on the subject. One noble lord,
the at against this principle, had in his judicial
capac
case of the Devon peerage, maintained not
. Only that the Crown had the power of creating life-peer-
g" es , but of making them during the lifetime of another
Peer. The power of the Crown in creating peerages had
Passed through so many modifications that it was im-
Ns to exclude the power of creating life peer-
ages.
Vane in
late Lord Londonderry sat as Lord
• in. the House of Lords, with the express
limitation. to. a younger child
.by a second wife, and
''..di_fecr.rtylle Principle had been carried out Lord London-
anioolniedyitiona.
would not have been able to sit in the house under
He would add that, whatever might be
"tie low. of those who advised the Government on the
te of Lord Wensleydale, there could be no doubt
that the Lord-Chancelloras actuated by the object of
• •pi,roviding for what the bill itself was intended to provide,
the Lords.
' "Pl'il'ing a want in the appellate tribunal of ocnr.otwhe_ othern hand, lie did not think the prerogative of the
stantial s
of itsaleurd by this bill. He thought that the preroga-
tive
of
Crown might safely be given up for some sub-
. the prerouPP9rt in the absence of any power of enforcing
Lords. creating life peerages in the House of
Crown
shoukivas there any sound practical reason why the
tation its
was int of
ended be advised to refuse its consent to this limi:
prerogative. It was not a principle which
to ineet
to be widely applied—it was only intended
Crown haa,libiractical difficulty. The prerogative of the
bPiesehrs_, and o
oeen wpist!d
u.imndtehre
acnaseasetoof
flrpisahrliaanindenStc, theotch
°P3 were limited in their number in the House of
•