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

ties of Lord Cottonham, Lord Brougham, Lord St. Leon-
ards, Lord Campbell, and Lord Langdale, who, at differ-
ent periods, have recorde 1 their opinions against the
present system, and recommended changes, any of which
would be better than that now proposed. This is an
usurped jurisdiction on the part of the House of Lords,
and it was so characte, ise I by Lord Hale, Lord Holt, and
Lord No t nghanr. It was a jurisdiction originally exer-
cised by the King and his privy councillors, and a deci-
sloe was arrived at, but not through the Lords. Sir, of
two things one must bs done. Either the Houss of Lords '
proprio vigore, must endeavour to amend their j urisdiction ;
o*, 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, mpetent 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
tack session, the Lord Chancellor could not make a classi-
ilcation of the cases to come before them and refer those 1,
to common-law and equity Scotch judges and privy coup- ~
eillors. 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 sure, that l'
things cannot go on as they do now. The public and ',
the profession will not allow it. Sir, the House of Lords 1,
is an assembly of politicians, and it is wonderful to ~
expect that- Chancellors and ex-Chancellors who meet:,
r
to debate in the evenings, sometimes with great
keenness and bitterness—(a laugh)—should meet in the
morning to agree in their judgments as if nothing
1,
had happened. (Hear, hear, and a laugh.) Lord St. ,
Leonardo, in his able workl on real property, says
that to the science of law nothing is so injurious as debates 11
eu the law. And yet, in his honest eagerness, that noble .;
end learned lord has broken thionh his own rule, and de- ~
fends his own decisions with remarkable ability and keen-
bees.
(Hear, and a laugh.) I can give illustrations of .1
the action of this political influence. There was the
O'Connell case, in which the hon. and learned member fur
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 prononnced
the other way. Vice-Chancellor Stuart has also given the
Opinion of my late lamented friend Sir Wm. Follett, that i
the House of Lords On that occasion impaired their juris- i
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 thai judgment was upheld by the House of
Lords, as there w a an equality of voices, and no judgment
A all was arrive at—(hear, hear)—so. that,' literally, the
decision was red seed to a matter of chance. (Hear, hear.)
There was also t e Bridgewater will case, in which eleven
Judges were calla irl. Nine out of the eleven agreed with
the Lord Chance tor, and the Vbaocellor having decided i
itl his own court, acked by ride judges, his judgment was
reversed by the pica of four ex-Chancellors. The Scotch
cases are more remarkable still, and this bill does not pro-
tide a remedyi But if there is to be a Scotch deputy,
What would the People say to his deciding on matters
"ffeoting one-third of the property of the kingdom ? True
;t is open by the bill for the Crown to appoint a Scotch
lawyer. But what is the administration of justice in
Notch appeals? , Lord Erskine, after he had been raised
to the Chancellorship, frankly declared that he knew as
!Inch of the law of Scotland as of that of Mexico.' My
Ord Truro—than whom amore honest, upright man never
Ailed the seat of justice—(Bear, hear)—and who possessed 1
% quality even more precious than learning—the strongest
Possible love of justice—(hear, hear)—was not ashamed to
°Wn his imperfect knowledge in this respect where justice
etas at stake. (Hear, hear.) Lord Truro sat by sad
compulsion for a whole session hearing Scotch appeals
*done; and, at'the commencement, such was his deficiency
with regard to the practice of recording Scotch entails that
home
borrowed an' elementary book on the subject to take
%Me with him.

The SOLICITOR-GENERAL.—That was on an Irish
aPPeal. ' :"-
Sir J. GRAHAM.—Lord Truro was sitting in equity,
14141 all his life he had been a Common-law lawyer. (Hear,
oleeze) He sat for a .whole session on Scotch appeals, and
le;!/111 was his sense of justice, that during all that time he
`•.41 norproduce a single judgthent. (Laughter.) The Lord
Justice-General of Scotland, ih answer 1,03, declares that
4Ppeale to the House of Lordi are undertaken on the spe•
aelation as to the character of, the tribunal at a particular
time. The Lord Advocate, e4hom I see sitting here, has
fated that he has heard things avouched at the bar in the
"louse of Lords es the law of Scotland which the youngest
kember of the House of Corninons would be ashamed of,
Ind that agents did not look !to the merits of cases, but
!Peculated as to the light in which English lawyers would
7,ew them. It is said that a Lord Chancellor, who pre-
tt,"led on the woclsack for yeari, with entire satisfaction to
;me people, pronounced judgments most consistent with
'lletice, and redundant with learning. He kept his own
et/masel..but at last the mode by which he arrived at his
decisionsZ transpired. The Lord Chancellor said that after
hearing a case he always retired to his closet before pros
40uncing a decision, and he acknowledged that he a,ffixed
4 number to the cases 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 ape-
!lllation that we are asked to give our sanction. The re-
ne:eatery process haii been commenced by the Lords them-
&elves, but I think that an inquiry into the appellate
jurisdiction in the last resort would still lea a useful and
"°nourable employment. (Hear, hear.) If this bill be
delayed by inquiry, we may remember that the session is
kicawing to a close, and that the appellate jurisdiction will
not be called upon to decic'e upon appeals for some months
to come. I have been asked to sketch a scheme of im-
provement by which the intervention of the House of
I"lnnions may be avoided. But if legislation be necessary
us begin de 710110, and consider how an efficient tribunal
_eati be instituted. As b .tween my vote for delay and for
e n bill I have no hesitation. If lam driven to it I shall
he against the bill ; but perhaps, on the whole, it will
"a better to support the motion for a committee of in-
quiry. (Loud cries of " Hear, hear.")
Ir., ROUNDELL PALMER said the arguments which
bad been advanced in support of the bill were sufficient to
deutifY him in any opposition which he might give to it, if
he felt so inclined. He cousidered however, that the sub-
Ject seas one'that urgently required leeislationond although
Ile thought the bill was weak in its details, yet he believed
division
were open to amendment, and if they were to go to a
uivision on the principle of the bill, ho must give it his
ta!-IPPort. He did not believe the exaggerated representa-
el?ns as to the defects of the jurisdiction of the House of
rde,_although he was free to confess that there were.
ally defects 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
t "'jug courts of final appeal, which should be satisfactory
4? the suitors and to the public ; which should maintain
,;!le independence of the judicial system, so that such a j n-
'neater° mieht be enabled to stand at the head of the
etlieatories a the kingdom. The choice lay between the
removal of the power of aeal altogether from the Home
14°I Lords, or the appointment of officers of a new class such
es bill proposed. It wastheir first duty to consider the
0 ect the bill would have in the administration of justice.
n that point of view he should aproach the question.
4°l be believed would be the real aplternative, but as re-
tied the principle of the present measure he would not
el ee the alternative. His hon. friend bad proposed to
,Te"aify the cases of appeal' into Scotch, Irish, colonial and
fri,°,l), and would constitutea committee of Scotch and
Bath lawyers equity and'Common law lawyers, and delta
\t ,
o ssto them the appellate jurisdiction. This was to give
: determination of the appeal to the very judges from
11 lane the appeal lay. If this was the case, they would
ill, want any court of appeal at all. There was already
t, Court of chequer Chamber, which would answer
4-'.: Ramo purpo e. 'This principle was simply that of solv-
'o". hie difficul y by cutting the knot, and saying that no
1
°ll't °f epea was wanted at all, and that everything
t.44°uld be one l y courts now sitting. There remained the
r9'"'ng the appeal to the Judicial Committee of the
jolvY Councili Now that committee was composed of
T,"Ve who 114 their tenure at the pleasureof the Crown.
p'ip effect th4efore of constituting this appeal in the
tt rivY Council Would be this—that the judges of ultimate
peal would' be removable at the pleasure of the Crown.
e° that, while pll the lower steps were independent of the
ittu.echwTrah,itihe highest court of appeal would be dependent on
Might appear to bee mere question of form, but
into questions were liable at any time to be turned,
ee:au qeestion of grave political importance. There
Gthi3 pcact cal objeetion to the proposal—tbat you,
ust first des roy, and then reconstitute the Judicial,
Which of he Privy Council—a court the merits of
must the sou ,r;er had long acknowledged. A new court
i•enut be consti bed, exercising new judicial powers. Now-
eulltii4lning a n w coutt, they must bear in mind the diffi-
ieses of constituting a new court of appeal for our coin-
fra ' When 'he constitution of those colonies was first
of isn?d. there ems nothing unconstitutional in the Court
the pr'vY-Conncil as a court of appellate jurisdiction from:
evotek°n4.BC' Ant if they were to create a new court, there
to this new
se •eMs obstiuctions on the part of the colomee,
ell ulis new 'en rt'of appeal. Then, again, after all, was,
37. e traditional espect for the judicial power of the House
toot °,rde so eee rly baseless, and was there nothing in tha
br-4 °f aPPea being connected with one of the great
for9ehes of th Legislature? Did theudicial system ent-
ketrnna Navinits root in the House of Lords—so inde.
Pendent of allother influences whether of the Crown or off
hi Yoi°tller ? e believed that the judicial system gained'
I
the Tinity, vieur, and stability from its association with
dignitylaLottse of Lords ; while that house gained equally in.
itti and stability from its association with the court off
tbeeeattwee He could not help asking the question, iff
tore: would
establish a court of appeal in the House off
e. would it not be better to try to do so thanto.vene,
leis e• " new experimetits elsewhere ? As to the bill itselff
of ellgiat bon. friend objected to the bill on two grounds;
cierriPin; which were these : the manner in which the,
etoost on of life peerages was dealt with, and the recogni-
Net " the_practice involved in the present judicial eonstie-
ketnbn.or the House of Lords. As to the first, they weim
Mutt it
the
, ,_.._ arguments, On the one side it was urgedi
stereete6llo Powers to the Crown in the creation of lifie
seigatr;B, and' on the other that they diminished the pre--
falsepee, by limiting these peerages. Now he (Mr. R.
right T, why of !opinion that the Crown had an undoubted!.
duebt ° eteate life peerages. Until the late debate no, •
bow e..livae; ever expressed on the subject. One noble hereto
ceptie're ardent against this principle, had in his judiciull
cspe4',LY in the case of the Devon peerage, maintained non
ages, the Crown had the power of creating life-peel--
Peer, The f making them during the lifetime of anothez
Passed v!Power of the Crown in creating peerages haul
Posaibieurough so many modifications that it was ime-
hoe. to exclude the power of creating life peer,
Vane The late Lord Londonderry sat as Lordl
!ineitaeliell' ',the • House. of Lords, with the express;
'r the al° a younger child by a second wife, anal
saes principle had been carried out Lord Londont-
euoiir Would not have been able to sit in the house unclear
the ec°,nditione. H would add that, whatever might late
ereae"toneaY of those He
advised the Government on thee
that teu_ of Lord Wensleydale, there could be no douhtt
Preese".° Lord Chancellor was actuated by the object off
• ••ese. -
s.;Arotvelleriv?Thi.ne:
le aep4kior what the bill itself was intended to provides,
laiawnadnt in'the appellate tribunal of the Lev*
~he did not think the prerogative of tlue
tie,
of .peered by this bill. He thought that the prerogra-
attsettele CroWn might safely be given up for some mile
tnia° F rare .. Pport in the'absence of any power of enforcing
eeeri et. ':lative, of , creating life peerages in the House elf
Crops _eiN.Gr Will there any sound practical reason why tine
teeeoe aonould be advised to refuse its consent to this limn-
. !I -peer ative
i'ae reeeedee . eg .It was not a principle which
ea new _ t'n LO be widely applied -it was only intendeed
urowe u„:4 Practical difficulty. The prerogative of thin
eet.a."_°' had been limited in the cases of Irish and Scoteth
big, and of bishops. Under an act of Parliament, tine
'''`°Ps Rare • . •
re limited in their number in. the Howe. uxf