The Sun.
London, England, 1842-03-02 00:00:00

ADMINSTRATION OF JUSTICE.

Lord CAMPBELL then rose for the purpose of
bringing ender the consideration of their Lordships
three B;lls which he had •' prepared, for the
pose of improving the adrninistration_of justice in this
country. In bringing those measures before their Lord-
ships, he would stab*: shortly the object he had in view,
reserving the discussion till the second reading of those
Hills. It gave him great satisfaction to think that'
measures he proposed were totally uncon-
lected with party. His object was to im-
prove the. :administration of justice in the Courts
of the last Appeal, and likewise to improve the
administration of justice in Chancery. lle need
not point out to their Lordships the extreme
importance or having a satisfactory tribunal to which
all cases might be carried in the last resort, for not only
the rights of the parties were finally determined by that
tribunal, but that tribunal settled the law. It was of
the last importan2e, therefore, that there should be a
supreme Court of Appeal, which should command
the respect of all those who had occasion to
resort to • it, and of the community at large.
It was of importance that that Court should he sitting
the greater part of the year—that access to it should be
easy, and that the administration of justice should be
expeditious, and should not be burdened with excessive
costs. It was of particular importance that there should
be only one tribunal of appeal. In England there had
been great irregularity' on this subject. Their Lord•
ships' House, from an early period, had had the
undisputed. power of deciding upon writs of error from
the Courts of Common Law ; but it was not till the
reign of the Stuarts that appeals respecting equity suits
were entertained by that House. With respect to the
Ecclesiastical Courts, which determined matters of great
consequence, before the Reformation the appeal was to
Rome—to the Pope. After the Reformation that was
put a stop to, and there was a strange sort of anomalous
tribunal established—a tribunal pro hac vice. That
was the
.Court of Delegates. With regard to
Admiralty causes they came before the King in Council.
Appeals from the colonies also came before the King
in Council, and from the Court of Chancery in lunacy
cases appeals were not to their Lordship's House but to
the King in Council. Things continued in that state
till the year 1833, when an Act was passed for which the
public were indebted to his Noble and Learned
Friend (Lord Brougham) who then sat on the wool-
hack. By that Act the Judicial Committee of the
Privy Council was established, which was a great
improvement in the administration of justice. By that
Bill the Courts of Delegates were abolished, and all
cases from the Admiralty and Ecclesiastical Courts
were to come before the Judicial Committee. Although
the system established by his Noble and Learned Friend
was a great improvement, yet that improvement was by
no means of a permanent nature, and the time had now

arrived when achange must be produced. That system
still allowed of two tribunals of the last resort. Extreme
'inconvenience arose from such a system. There was
no question which came before their Lordships' House
which might not likewise come before the Privy
Council upojt an appeal from the Courts of Law or Equity
in the \Vest Indies, Australia, and America. Those two
Courts were of co-ordinate power and authority. The Judi-
cial committee of the Privy Council had no control over
the House of Lords, nor had the latter any power over
the decisions of 'the Privy Council. Nay, more not
only might the same questions be referred to both
tribunalP, but in the very same suit it was a matter of
doubt whether the case would come before the Privy

Council, or the House of Lords. For example, such a ques-
ticin as that of the Braintree Church-rate case, when the
question was, whether the churchwardens load the power to
make a rate against the wish of the majority of the parishoners.
Nov, this question might ultimately come before either tri-
bunal. If it went in regular course before the Ecclesiastical
Court In the first instance, it would afterwards come before
the Judicial Committee of the Privy Council ; but if an ap-
plieation were made to the Court of Queen's Bench for prohi-
bition, it would then come before a Court of Common Law,
and firrally before the House of Lords, so that their Lordships,
as well as the Judicial Committee of the Privy Council, would
have to decide whether or not the churchwardens exceeded their

authority in making such a rate. Now, in the case of a will
respecting a personal estate, the Ecclesiastical Court first had
jurisdiction, then the question of validity would come before the
Jadi+ial Committee of the Privy Council; but if it concerned
a real estate, the question would come before that House.
Thus, if a will, devising a personal estate of millions of money,
as in the case of the late Mr. Wood, of Gloucester, the ques-
tion came before the Judicial Committee as the tribunal of the
last resort ; but if it flotised a single rood of land, it would
come before their Lordships finally. Another great inconve-
nience attending the fact of the Judicial Committee being a sepe-
rate tribunal. was, that it had no bar of its own ; consequently,
either a case was partially argued, or the Judges had to decide
without the assistance of Counsel, or the suitors had
to pay enormous fees to the Counsel:and solicitors whom they
called from the Courts in which they usually practised. It
was, therefore, indispensably necessary that the country should
have one tribunal of appeal in the last resort, and in choosing
between the Judicial Committee of the'Privy Council and the
House of Lords, he trusted their Lordships would prefer the
latter. The foregoing were only a few of the reasons why they
should prefer the House of Lords But the House of Lords
might avail themselves of the advice of the Queen's .Judges,
which would give this tribunal a great advantage over the
other. The tribunal of the House of Lords would also be pre-
sided over by the able and illustrious men who were generally
Lord Chancellors of England, assisted by many professional
Peers, by an able bar, and by a body of solicitors, at very much
lower fees than the tither tribunal would require. His ( Lord C.s)
Bill then prOpOtid ilssit all appeals from the Ecclesiastical
Courts, the istuntneity Courts, the Cotiordal Courts, and, in
cases of lunacy, from the Court of Chancery, should come be-
fore the House of Lords. He proposed also that the Vice..
Chancellor should be summoned when required. Of the Scotch
Judges his Bill said nothing ; but they might be summoned
wbe a required ; and, being jealous of the honour of his country,
he I),•gged to express a hope that on such occasions the Judges
of Scotland would be placed on the woolsack, and not at the
bar, as had formerly seen the case. He proposed that the
jurisdiction of their Lordships' tribunal should he coterminous
with the British empire, and that in future, as in the early
part of the reign of Edward 111., they should be summoned
to sit upon judicial business only. He proposed also that
their Lordship's President being Lord High Chancellor should
also have a seat in the Cabinet of the Government, and that
there ought to be a permanent Chief Judge having nothing to '
do with polities appointed to preside at the Court of Chancery.
Fee his part he did not see anything in the judicial functions
of the Loral Chancellor at all incompatible with his political
duties. But he knew that others, amongst whom was his
Noble and Learned Friend the Master of the Rolls, thought
otherwise. But all were agreed that to have a removable
Judge was a great evil.—( Hear.) It was a great evil to have
a Judge removable at the will of the Crown ; but still greater
to have a Judge removable upon any change of the Ministry.
--(Hear, hear.) Let their Lordships consider what an evil
it would be to have a removable Judge in the Court of Queen's
Bench ?—( Hear.) It was no less an evil in the Court of
Chancery, and unless it was a necessary evil, it ought not to be
allowed to continue.—(Hear.) He might acknowledge that
in former times it might be necessary. Formerly the business
of the Court of Chancery was of little amount, and might not
present any objection to his being a Cabinet Minister, and sit-
ting in that House. 'Nit according to his (Lord C.'s) plan,
the Chanc'ellor would have sufficient time for his duties in that
House and in the Ministry ; and there would be in his place in
the Court of Chancery a Judge. unremo able quamdiu se
bens' geSserit. This plan could be carried into effect without
creating a new Judge ; for there had recently been created
two new Judges, and these were rapidly subduin,T the arrears
of business. It was almost certain that four Judges would be
amply sufficient to dispatch all the business in a satisfactory
manner. He proposed, therefore, that one of those Judges
should be appointed to preside in the Lord Chancellor's
Court, and that there should be the same appeal
to him as there was at present to the Lord Chancellor.
Another advantage arising from this would be that there
would be a real appeal from the decision of the Lord Chan-
, cellor. Hitherto the appeal had been little better than a
mockery, because it was from one man to himself.—( Hear.
hear.) It had been said that the Judges of a Court of Appeal
ought to be Judges, at the same time, of a Court of origi-
nal jurisdiction ; 'and it had been said that the Lord Chancel-
lor, unless he sat in a Court of original jurisdiction, would not
be a fit Judge to sit in a Court of Appeal. He thought such
arguments were futile in the extreme. Sir John Head, when
he sat its the Privy Council as a Court of Appeal, would not
allow even his own decisions to be quoted there. In the plan
proposed
I by his Noble and Learned Friend, the Vice-Chan -
cellor was to preside over the Judicial Committee, and the
Master of the Rolls in the Privy Couricil. The Master of
the Rolls likewise thought that the present system could not
continue, and he proposed a change of a more sweep-
ing nature than his, for he wished to create a
Chancery Judge, a Judge of Appeal, a President
of the Council, with the title of Lord Keeper, with a seat in
the Cabinet. He therefore had the highest authority for say-
ing that some change was necessary, and it then became the
qrtestion what change to choose. He thought the plan he
proposed the most advisable, because it combined two Courts
of Appeal, and 'made only one great Court of Appeal for the
whole empire. , He thought that great convenience would have
arisen either from having a Vice-Chancellor, or the Master of
the Rolls, overeating a new officer, as the Master of the Rolls
propoied to do in creating a President and Lord Keeper,
among whom the functions of the resent Chancellor should be
distributed. His (Lord Campbell s) plan could be carried into
effect without disturbing anything, without creating any new
Judge, or bringing any new burden on the public, or introduc-
ing in fact any ohange. He thought it the most effective plan
that could be proposed. To carry this plan into effect, he pro-
posed to introduce .three Bills ; one referred to that House,
and all Bills and questions that were brought before it ; the
second Bill gave power to the CrOwn to summon that House
during the p.orogation of Parliament, to meet and transact
judicial business. He could not see any objection to extenciing
this power to the period of the dissolution of Parliament, but
the period of fifty days between the dissolution and the re-
turning of the writs, was perhaps rather unfavourable to judi-
cial business, bUt during the recess the House would have
ample time to transact all the business belonging to it. The
third Bill was 14. the purpose of'appointing a permanent Judge
in the Court of Chancery, and he thought ia the first instance
he ought to be appointed from among the four Judges pre-
siding in the Court of Chancery; the Lord Chancellor would
thus be entirely traesfer red from the business of the Court to
presiding over the besii ens of that House. He thought it ne-
cessary to state as briefly as possible, the object of his Bills,
and when they Came to a
second-' reading he should be prepared
to answer any nh;eetinns that might he made to them.
The LORD CHANCELLOR said he did net rise to make
any objectioas to the Bills propesni by his Noble and Learned
Friend, wh i hid a rieht, according to the usual courtesy and
usages of their Lordships' House to lay his Bills on the
table. At the same time he begged leave to state
that as his Noble and Le irned Friend had not communicated
the substance' of his Bills to him, though he had said, by
implication, that he had done so to the profession generally,
having stated that the -veice of the profession was distinctly
in favour of the measure, vet a 3 he had not been kind enough
to communicate the particulars of these Bills to him, he trusted
he should be excused if he did not enter into any details on the
present occasion, and confined himself merely to general ob-
servations on the subject, and on some of the remarks that
had been male by his Noble and Learned Friend. In the
lint place, with respect to the Court of Chancery, his Noble
Friend had' alluded to the Bill of last Session, which Bill was
supported by Noble Lords on both sides of the House ; the ob.
jest of that Bill was to clear off the tureen of the Court of
Chancery, and to bring the business of the Court into such a
state that suitors'might have their causes tried whenever they
were ready for hearing. He was happy to state that that ohject
bait been completely accomplished. He, himself, (the Lord

Chancellor) twelve years ago, when he had the honour of
holding the Great Seal, introduced at two successive periods,
Bills which were directed to the same object.—(Hear,
hear.) But, unfortunately, though they passed their
Lordships' House, almost without opposition, yet they met
with so much opposition in another place, that they were not
successful. He congratulated his Noble and Learned Friend
near him that this was not the case with the measure he had
introduced. It was a wise measure, and had been attended
with all the advantage which he had predicted from it, and
which he himself, as an individual, felt confident would flow
from it. Their Lordships would allow him to state, in a few
words, what had been the result of that measure up to the pre-
sent time. In November last, when the Bill first came into
operation, there were upwards of five hundred cases 'standing
fort hearing in the Court of Chancery, and that amount of ar-
rears had continued for a long period. Their Lordships would
recollect the eloquent description given by his Noble and
Learned Friend of the state of the Court of Chancery, and of
the exertions made by the Chancellor and Vice-Chancellor, nor
did he think that that description was at all exaggerated. He
believed tl.at his Noble and Learned Friend stated that for a
considerable period the Court of Chancery had been sitting
permanently till three and four o'clock every even-
ing, when the Vice-Chancellor relieved guard, without
being able, notwithstanding all these extraordinary ex-
ertions to reduce the amount of the arrears. At the present
moment there were standing for hearing, including old arrears,
and new cases, not quite 100 causes. He did not at all exag-
gerate when he said that the object of the Bill had been com-
pletely and effectually accomplished. llis Noble and Learned
Friend in a Committee of that House, had stated that the ap-
pointment of one additional Judge would be sufficient to accom-
plish the object he had in view, but he must say, that at this
moment he could not come to the conclusion to which his Noble
and Learned Friend had arrived. He thought it would be pre-
mature to decide on that point, because they must remember
that in the Committee of that House much evidence was given
by men of general experience and great knowledge in the pro-
fession of the law, particularly in the Courts of Equity, to the
effect that if a way was opened to new cases, there would be a
large accession of business to the Court of Chancery. This to
a certain extent had been verified by the event ; he
had made inquiry into the number of bills filed
in two corresponding periods, and he found that
the increase had been in the proportion of 30 per cent., or
nearly one-third; but these cases not being ripe for hearing,
they had not the effect of increasing the list of cases to which
he had before referred. Independently of these considerations
he would state that they could form no adequate idea of the
amount of the grievance which suitors laboured under on ac-
count of the charges. The term fees arising from causes in a
single year amounted to upwards of 40,0001. The conse-
quence. therefore, was not merely to get rid of the arrears,
but to get rid of them promptly, in order to relieve the suitors.
As far as related to the present question, the main point was as
to the appeals ; and it had been said that increasing the number
of Judges would have the effect of increasing the appeals. Now
what had been the result? Why, at the present moment there
were not more than twenty-four appeals, and he was quite satis-
fied that, when the cases got into the ordinary channels, the num•
ber of appeals would not exceed fffteen a year.—(Hear.) His
Noble Friend had said how unwise it was that the Chancellor
should sit in that House, to hear appeals from his own deci-
sions. He was sure that his Noble Friend had not properly
considered the character of that officer, because he thought he
could undertake to say that when a case came before their
Lordships, either upon appeal or otherwise, the Chancellor
would look with more caution to his own decision than any
other. He was quite, when his Noble Friend came to reflect
on the observations he had used, he would see that there was
no foundation for them. He would appeal to his Noble Friend
himself, whether there was any truth in the observation. Now,
as to the Judicial Committee of the Privy Council, what were
the observations made by his Noble Friend, and what were his
arguments? Their Lordships must recollect that that Court
was one of the most ancient tribunals of the country, and it
had been rendered illustrious by such men as Lord Stowell and
Sir William Grant; and yet it was the tribunal that his
Noble Friend was anxious to abolish, notwithstanding their
Lordships had thought proper to extend the jurisdiction of that
tribunal, and establish it on a more solid foundation. That
tribunal had jurisdiction now in matters connected with the
Ecclesiastical Court, and he thought it must be apparent to
all that the present system was far better than the old. Under
the old system the appeal from the Ecclesiastical Court was
to a Court of Delegates composed of three Judges and three
Doctors of Civil Law, and when their opinions were equally
' balanced what was the remedy? Why they were obliged to
resort to a Commission of Adjuncts. ghat proceeding was had
resort to in a case in which he was engaged, and the result
there was that the Judges were on the one side and the civilians
on the other; in that case a second Commission of Ad-
juncts was selected, and the result would have
been the same had not one of the civilians given way.
Now was it not propel. to abolish such a tribunal ? and accord-
ingly it was wisely so abolished by his Noble and Learned
Friend's Bill, and the jurisdiction given to the Privy Council.
When they came to consider that tribunal, it was material to
look to its composition. It was admirable adapted for the con-
sideration of those subjects which came before it. There were
questions from all the colonies, embracing almost every variety
of European and Eastern law. There were the Spanish law
and the French law, according to the new and old code; Dutch
law; English law (both law and equity) ; and the Colonial
Statutes. In addition to that they had Oriental law—Hindoo
and Mohammedan. Subjects connected with those various
systems of law continually came before that tribunal ; and
what was the composition of that tribunal which was so admi-
rably adapted for the purposes for which it was established ?
In addition to what he had already stated, there were also the
Ecclesiastical and Civil law. Well, that tribunal was composed
of the Judges of England—the Common-law Judges to decide
questions of common law ; and the Judges of the Courts of
_Equity, to decide questions of equity. There were also the
Judges of the Ecclesiastical Courts, to decide questions arising
out of Ecclesiastical law. In addition to those there were,
with respect to the laws of the East, two learned individuals,
who filed high judicial situations in the East, and who were to
give their advioe and assistance upon questions connected with
Oriental law. His Noble and Learned Friend said that there was
great difficulty in getting that tribunal to assemble. He (the Lord
Chancellor) was not aware of such a difficulty existing. It
might happen that at times they could not be got to meet upon
some particular day and constitute a Court, because individuals
who formed that Court were engaged in other occupations;
but he (the Lord Chancellor) never knew any serious incon-
venience to arise from that circumstance. The Judges were
summoned according to the questions to be decided. He be-
lieved that the tribunal had given perfect satisfaction. He had,
inquired of persons connected with the Colonies on this sub-
ject, and they not only expressed their entire satisfaction with
the management of matters brought under the cognizance of that
; tribunal, but stated-they would regret very much any altera-
-1 tion in the present system. But his Noble and Learned Friend
said that this Court sat only forty or fifty days in the year.
They sat long enough to dispose of the business before them,
and they must mark that there was no arrear. According to
the returns now on the table of the House, it appeared that
only eight or nine cases were now standing for hearing; and
there never would have been any arrear if it had not been
for the circumstance of there being no persons to prosecute in
some East Indian causes which came before the Court. That diffi-
culty was now however removed, and that Court would go on
as it was now going on, in a manner perfectly calculated to
satisfy the suitors who awaited its decision. When he (the
Lord Chancellor) found a system working well, and people
perfectly satisfied with it, he was one of those who were very.
much indisposed for change—he did not wish to change for
the sake of change. Some great man connected with the Jaw
in the olden time had said, you should never make a change in
the law unless it was demonstratively for the better. At the
same time he (the Lord Chancellor) was not surprised to find
his Noble and Learned Friend bringing the present measure
before their Lordships. His Noble and Learned Friend had
led a busy life ; he had now little or nothing to do, and it was
natural his active mind should seek something to employ it.
It was very much like a seheme formerly submitted to the
House by a Noble Friend of his (Lord Lyndhurst's), and which
was negatived by a very large majority when it came to be
discussed. Having said so much with respect to the Privy
Council, he would now turn the attention of their
Lordships to the jurisdiction of their Lordships' House.
He must say that there never was a moment
when it was less necessary to interfere with the
jurisdiction of that House. There were Noble and
Learned Lords who gave their constant attention to the sub-
ject. Even when their Lordships sat for public business, the
House also sat for the purpose of disposing of causes. The
Noble Lord atthe end of the bench, formerly Lord Chancellor
—his Noble and Learned ltriend rear him, his immediate pre-
decessor in office—there was his Noble and Learned Friend
who brought forward this measure, the late Lord Chancellor for
Ireland—all gave their assistance. He thought nothing could
be better than the appellate jurisdiction of that House at a
time when the Noble Lord was desirous of producing a change.
They had many schemes brought before that House, with re-
spect to this subject; but he would state to their Lordships
that it appeared that nothing could go on better, on the
whole, than the present system. He would next allude
to the jurisdiction of the Privy Council, which - the
Noble Lord was desirous to alter. The Noble and
Learned Lord said, with
_respect to this subject,
and he (Lord Lyndhurst) ought to have alluded to it before--
that there was extreme difficulty in getting a bar. Now, he
had attended there himself while there were questions of great
weight, but he never found any deficiency of gentlemen of the
long robe of the very first talent. He had often heard the
Noble and Learned Lord arguing with great force there, and he
(Lord Lyndhurst) believed it was as good a bar, and as regu-
larly attended, as any other Court of Justice. The Noble
Lord said the two appellate tribunals were co-ordinate.
A Noere LORD—They are for the same questions.
The LORD CHANCELLOR—The Noble Lord said they
were for the same questions, but they were not co-ordinate,
because the jurisdiction of one Court was for a certain part of
the country, and the other Court for another part. But ho
said they were the same questions which came for decision.
Now, it was a remarkable fact, that during the two hundred
years that the Privy Council had exercised its jurisdiction, in
no one instance had there been a decision at variance with
that of their Lordships' House. So that practically
there had been no inconvenience,—(Hear.) Various al-
terations had been from time to time proposed. One was to
divide the Lord Chancellor into two, and send one-half
of him to the Court of Chancery, and keep the other half on
the Woolsack.—(Laughter.) The project of the late Lord "
Chancellor of Ireland, if carried, was to put the Lord Chancellor
in an easy chair, with two assessors by his side to do the duty.
Another was, to take away the appellate jurisdiction of their
Lordships' House, and transfer it to the Privy Council ; and
now it was proposed by his Noble and, Learned Friend to take
away the jurisdiction of the Privy Council and transfer it to 1
their Lordships. Such were the various and incongruous i
plans proposed by ingenious and leas ned men when they applied
their minds to this complicated subject. The best way to look
at the question was, had the present system worked well?
He announced that it had worked well—hail worked
admirably. His Noble and Learned Friend thought that the
intervals between the sittings of that House were too long.
Why, the intervals between the sittings of the Law Courts was
nearly as long. In the long vacation it was four months and a
half, which was nearly as great as the interval between the
sittings of Parliament, which was usually more than five months. ,
The Law Courts did not set to hear questions of law more '
than seventy days in the year; and their Lordship's House
set more than 100 days.—( Hear.) But his Noble and Learned
Friend proposed to alter the constitution of Parliament. Ile
( Lord Campbell) proposed to prorogue the House only for a par-
ticular purpose, or to appoint a Committee. If this plan were
adopted the appellate jurisdiction would not be considered to be
in their Lordships, but in a distinct body sitting within the same
walls. The Ho ;se of Lords had established its judicial autho-
rity after a sharp and severe struggle with the other House
of Parliament, and he trusted their Lordships would not now
consent to lose that authority, either by delegation or by the
contrivances of his Noble and Learned Friend. He (the Lord
Chancellor) would not go now into the details of the measures,
but he really believed that when his Noble and Learned Friend's
Bills came on for consideration, not one of them would be found
deserving their Lordships' countenance and suppert ; as he also
believed that when considered by the legal profession at large,
they would not meet that approbation which his Noble and
Learned Friend, by anticipation, seemed to think they would
receive.
Lord COTTENHAM bad listened with interest to the pro-
positions of his Noble and Learned Friend, and approved of a
great deal of what he said ; no wonder, perhaps, because it was
to a a great extent a repetition of theplan he ( Lord C.) proposed
with such ill success in the House in 1 te36. He proposed that there
should be a permanent head of the Court of Chancery, but he
thought, that so tar from being injurious, it was highly beneficial
that the separate tribunals of the Judicial Committee of the
Privy Council, and of the House of Lords, should exist ; for