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United Kingdom House of Lords Decisions
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Cite as: [1856] UKHL 2_Macqueen_579
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SCOTTISH_HoL_JURY_COURT
Page: 579↓
DEBATE ON THE INQUIRY INTO THE APPELLATE JURISDICTION OF THE HIGH COURT OF PARLIAMENT.
On the 28th February 1856.
Earl of Derby's Speech.
The Earl of Derby:
My Lords, I am quite aware that I should be open to the charge of the most unpardonable presumption, if it were to be supposed for a single moment that the motion which I am about to submit to your Lordships could, in the least degree, interfere with or prejudice that of which notice has been given for some future day by my noble and learned friend behind me
(a), and still more so, if it could be imagined for a moment that, in bringing forward this question, I was seeking to take out of the hands of my noble and learned friend a subject upon which, I need not say, his authority must be immeasurably superior to mine; but upon which I hesitate not to say, with deference to other noble and learned Lords in this House, there
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a) Lord Lyndhurst. His Lordship had, on the 25th February 1856, given notice as follows:—“My Lords, I beg to give notice, That in the course of a few days I shall call your Lordships' attention (unless some other Peer should make a motion on the subject) to the state of the judicature of this House, with a view of applying a suitable remedy.” (Cheers.)
Page: 580↓
My Lords, as I understand that opposition is not likely to be made to this motion, beyond the addition of certain words proposed to be added by my noble friend the President of the Council, and which do not appear to be foreign to the subject matter of the inquiry, I shall not be under the necessity of troubling your Lordships at any great length; but I hope, in moving for this Committee, you will permit me, as shortly as I can, to lay before your Lordships some of the views which I entertain upon the necessity of dealing with this important question.
My Lords, with regard to the appellate jurisdiction of your Lordships' House, I imagine it to have been from the earliest time a jurisdiction inherent in the Great Council of the Realm, and that from the period when some of the elements gradually fell out of that Great Council, and held their deliberations in another place, and under other authority, the jurisdiction originally vested in the Great Council remained in that portion of the body which was at all times the most important, namely, in those who now constitute your Lordships' House. I am speaking now, of course, with regard to jurisdiction in matters of law. With regard to the jurisdiction in cases of equity, the origin of which dates from comparatively modern times, this House has invariably exercised that jurisdiction ever since the memorable discussion between Lord Coke
Page: 581↓
My Lords, I shall rather shock some of your Lordships by saying that, highly as I value this privilege, I do not consider its maintenance to be so absolutely essential, as some noble Lords may think, to the fitting discharge of the other functions of your Lordships. I consider it undoubtedly to be a very high privilege, and a most important privilege, and as regards the legal members of your Lordships' House, it undoubtedly does vest in them, as being such members, a very high and a very important and responsible jurisdiction; and even with regard to the House at large, I am not prepared to say, though substantially the authority is not practically vested in them, that the apparent semblance of that authority is not in itself a real source of power, of which I should be sorry to see your Lordships deprived. But of this I am quite certain, that if it were necessary to take this alternative between the maintenance of any privilege of your Lordships' House, however important or however valuable, and on the other hand, the better administration of justice, there is not one of your Lordships who would hesitate in regard to that alternative, and say, let justice be fairly and impartially administered, whatever privileges this House may be compelled to forego (a). But I am not prepared to think that it is necessary so to abandon those privileges; and in all the observations I shall have to make to your Lordships, I shall proceed upon the assumption that it is desirable to maintain the appellate jurisdiction in the House of Lords.
My Lords, I may be permitted, perhaps, before I go further, to remind your Lordships, that from the earliest times, not only the Peers of the Realm, but
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a) The jurisdiction is a duty cast on the Queen's highest Court of Justice. It may be also called a privilege.
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Then, my Lords, how is the present tribunal practically constituted? Technically it is supposed that
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a) They were summoned to advise the Sovereign; “nobiscum super dictis negotiis tractaturi vestrumque consilium impensuri.”—See Hale on the House of Lords.
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( a) This happy ridicule has been unsuccessful. The “lay figures” still sit. (March 1857.) They are summoned in rotation
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My Lords, before we come to consider the question of the remedy to be devised, if any remedy is required, for the defects of the existing tribunal, I think it is necessary to consider what are the principal objections
_________________ Footnote _________________ according to a scheme suggested by the late Lord Liverpool, in 1820, the Chancellor, Lord Eldon, concurring. The Peers at large evidently had not their attention directed to this arrangement. It was denounced by Lord Brougham in the first year of his Chancellorship as an outrage on “the general feeling of the community.” (
Times, 3rd Sept. 1831.) “Lay figures” vote on appeals and writs of error like law Peers, and if they chose could overrule the Lord Chancellor; his vote counting as but one in opposition to their two. The difference is that he is “a deliberating unit; they, two cyphers superadded to make up the quantum of judicial authority.” So says Mr. Leahy. On the 11th March 1857 an appeal case between two railway companies stood in the paper. The Peers present were, the Lord Chancellor, Lord St. Leonards, Lord Wensleydale, and Lord Congleton. Says the
Times (12th March 1857):— “When this case was called on for hearing, “The
Lord Chancellor intimated that his noble and learned friends Lord St. Leonards and Baron Wensleydale were shareholders in the London and North-western Railway Company, and he wished to know whether any objection on behalf of the parties would be made to those noble Lords hearing and deciding the cause. “Mr.
Rolt, on behalf of the appellants, said that so far as regarded his clients, he was sure no such objection would be made,—in fact, as there had been a variety of conflicting decisions in the case, he prayed that those noble and learned Lords would hear the case. “The
Attorney-General said that if he were speaking for himself he should not have the slightest objection to the noble Lords referred to deciding the cause; but, after a recent decision in the Court of Common Pleas, he could not assent to that arrangement without the sanction of his clients. “The
Lord Chancellor said that he trusted the Attorney-General would not object to Baron Wensleydale sitting as a sort of assessor. “The
Attorney-General said he thought he might assent to that arrangement. “Lord St. Leonards accordingly withdrew, and Baron Wensleydale remained upon the understanding that he was to give no judgment.
Page: 585↓
I apprehend those objections to be seven, some of which, however, run one into another. First, the small number of Judges; secondly, that the attendance of those Judges is not compulsory; thirdly, that not being compulsory, the number in attendance is uncertain; fourthly, that there is a great chance of a failure of justice from the consequence of no judgment being delivered; fifthly, that in certain cases there is an appeal from the same individual sitting in one capacity to the same individual sitting in another capacity; sixthly, that the tribunal sits for only half the year, and, consequently, during the remaining half there is, so far as this House is concerned, a denial of justice to the subject; and, seventhly, that in the case of Scotch appeals, there is an inadequate tribunal to decide upon them. Postponing the case of the Scotch appeals, I will proceed to consider those objections, not exactly in the order in which I have enumerated them.
_________________ Footnote _________________
“This was an appeal from the decision of the Lords Justices, affirming a decree of the Master of the Rolls pronounced in a suit for the specific performance of an agreement instituted by the appellants, as plaintiffs, against the respondents, as defendants. The Lords Justices having decided against the appellants, the present appeal was brought.”
During the subsequent days of the argument the Lord Chancellor was obliged to sit alone, that is to say, with “lay figures,” who break no solitude.
Page: 586↓
_________________ Footnote _________________
( a) The proposal of Lord Cottenham in 1836, to establish a Court of Parliament throughout the legal year was not wholly without warrant and precedent.— See the Statute 14 Edw. 3. c. 5., and Blackstone's remarks, 3 Comm. c. 4.
Page: 587↓
Now, my Lords, I think there is more weight undoubtedly in the objection to an appeal from a Judge sitting in one capacity to the same Judge sitting in another capacity. My Lords, I certainly can imagine that a judicial mind, from long habit, may be so balanced and so equally poised as to be capable of listening impartially, and weighing impartially, the arguments urged upon the re-hearing, which may induce the same Judge to modify or alter, upon re-argument, the opinion he has formally expressed; but I must say that this is a position in which, neither with regard to the Judge himself nor with regard to the suitor, is it expedient that any man should be placed, because, if it does not really interfere with, it casts at least a suspicion upon the due administration of justice. My Lords, I apprehend that this can rarely occur in the case of appeals to your Lordships' House. My Lord Chancellor being in every case one of the Court of Appeal, his presence being all but indispensable, that is to say, the practice being that the Lord Chancellor always does preside, he has in certain cases, which are very few, an original jurisdiction. With regard to the other Law Lords of the House, they can have no original jurisdiction, at least those who attend upon appeals, and consequently the case of an appeal from a Judge to the same Judge must be a case of very rare occurrence. There is, however, one case, and I approach it with some difficulty, because I believe there is at this very moment an instance of the kind pending before your Lordships' House; that is a case in which your Lordships' House, as a tribunal, may be placed in a very painful position, and one which ought not to arise in the proper administration of justice. I take the case where the Lord Chancellor,
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Again, my Lords, I may state that it has been mentioned as one of the objections to this tribunal, that there is a possibility of an equal division of the Court, and in that case there is a failure of justice, as it is said. My Lords, of course I need not say that where a Court, whether composed of more or fewer members, is equally divided, the result must be that the Court practically comes to no decision. But what is the result of its coming to no decision? If there be two against one,
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Earl of Derby:
Then, my Lords, the remaining objections, besides those which I have enumerated, are the small number, the uncertainty of attendance, and the fact that the attendance is not compulsory. With regard to the two objections, of the uncertainty of the attendance and its not being compulsory, it is quite obvious that the remedy which has been suggested by the Government
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a) Lord Brougham.
Page: 590↓
But then it is said there is a small number of Judges; now, my Lords, I am not quite sure, however plausible this objection may be, that it is one which is founded in reason. Recollect who the Judges are, rather than how many. The Judges in this House consist, first and principally, of the Lord Chancellor, and the very fact of the Lord Chancellor having to preside in the judicial proceedings of this House, imposes upon every Government of Her Majesty the necessity of placing that political office of Lord High Chancellor in the hands of the most eminent man they can find at the Bar who also concurs with them in political opinions. My Lords, happily political opinions are so divided in this country, that I do not think that suitors in general would have any great cause to complain, either at this or at any other time, of the ultimate appeal from otherwise the highest judicial authorities being vested in the ablest men of one or other of the parties into which this country is divided. But, my Lords, what follows? Besides the Lord Chancellor of the day, there is, probably, a man equally learned, equally distinguished, who has been the Lord Chancellor under a preceding Government, and no person can hold an office as a Peer in this House, entitling him to sit and hear an appeal, who is not a man of high and distinguished eminence in the profession of the law. At the present moment we have fortunately at least five noble Lords of great
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_________________ Footnote _________________
( a) Lord Lyndhurst.
( b) Lord Campbell.
( c) Lord St. Leonards.
( d) Lord Brougham.
Page: 592↓
Now, my Lords, various suggestions have from time to time been made. I take first that which has been suggested by Her Majesty's Government (though not exclusively by them) in the course of the argument, and which is grounded upon the defects of this House as a Court of Appeal, it being evidently intended that the defects of the Court of Appeal should be the main stay of the argument by which they support their proposition to introduce Peers for Life. Now, my Lords, who are the judicial persons who are to receive Peerages for Life to be? If they are men who at the present moment hold high situations, the duties of their various offices may distract them from an attendance upon your Lordships' House, and may prevent them from giving that assistance which you desire to receive. If they are men of less eminence, then you run the risk, in the first place, of not obtaining necessarily an increased attendance; you certainly will not have any compulsory attendance, the number of the Judges who will sit to hear appeals will be as uncertain as it is now; but you will have this, you will have the probability that the tribunal, at the same time that it is increased in number, will be weakened in authority,
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Then, my Lords, my noble friend (a) whom I see at the table has suggested that there should be certain offices which should carry with them Peerages for Life.
Earl of
Derby: Such Peerages undoubtedly (as in the case of the Right Reverend Prelates opposite) would not be open to several of the objections which might be urged against non-hereditary Peerages in general; but, my Lords, I think they would be open to this objection, that there would be an exceedingly imperfect addition made to the tribunal of your Lordships' House, and more especially viewed as a Court of Appeal. We all of us know in the ordinary deliberations of this House, what is the value attaching to the authority of the noble and learned Lord the Lord Chief Justice; but we also know that upon many occasions, unfortunately for us, in consequence of his other avocations (and the same would be the case with the Chief Justice of the Common Pleas and the Chief Baron of the Exchequer), we have not the attendance and the assistance
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a) Lord Redesdale; who had proposed a system of official Peerages which his Lordship brought forward on the 27th June 1851, in the form of a proposal to address the Crown praying, that “For the advantage of the House and the suitors thereto, and for the honour of the legal profession, Her Majesty will be graciously pleased to sanction the erection of the offices of Lord Chancellor, Chief Justices of the Queen's Bench and Common Pleas, and Chief Baron of the Exchequer into Baronies, which shall entitle the holders of the said offices to writs of summons to Parliament by tenure of the said offices.”—See Hans. 3rd Series, vol. 117, p. 1311.
Page: 594↓
Earl of Derby:
He is rarely enabled to sit, and, in point of practice, rarely does sit. Then, my Lords, assuming that it is necessary to increase the number of the tribunal, for the purpose of securing a more regular attendance of Judges, and at the same time of increasing the number who sit to hear appeals, we have the alternative of the creation of Peerages for Life generally, into the objections to which I will not now enter at large; we have also the alternative of official Peerages, as suggested by my noble and learned friend at the table; and also the suggestion of the possible addition of Judges upon the precedent introduced by my noble and learned friend behind me, in the Act establishing the Judicial Committee of the Privy Council.
Now, my Lords, upon what principle did that Judicial Committee of the Privy Council proceed? Upon the most sound and wise principle, namely, that with regard to questions affecting the Court of Prerogative, the Vice-Admiralty Courts abroad, appeals from the Colonies, appeals from India, in virtue of the power of the Crown to refer those matters to them as it might think fit, with regard also to the case of the extension of patents—the Judicial Committee of the Privy Council, in whom previously as a body had been vested the right of deciding and adjudging upon those appeals, had delegated to them, by the Act introduced by my noble and learned friend, the sole and exclusive consideration of those questions. That is, the Privy Council delegated to certain judicial and legal members of their own body, who were selected and named in the Act, the duty of examining into
Page: 595↓
Earl of Derby: Practically, I think, there are not above twelve or fourteen offices which are generally held by Privy Councillors; and in addition to those twelve or fourteen officers, there are a number of persons selected by Her Majesty, being Privy Councillors, and also those persons are included who may, at any previous time, have held the offices which are mentioned.
Earl of Derby:
Therefore, in order to obtain a quorum of four, that moderate number which was not in the case of the Judicial Committee of the Privy Council thought too small, it was deemed necessary to constitute a Court from whom the Judges might be selected, comprising at the very least, probably, from twenty to twenty-four individuals. Now, my Lords, my noble and learned friend opposite, who has talked of the creation of Peers for Life for the purpose of constituting an improvement in the Court of Appellate Jurisdiction of this House, surely does not dream, for the purpose of gaining four more Judges, of creating twenty or twenty-four more legal Peers, because the result will be that, in the first place, their attendance would not
Page: 596↓
Then how would you select them? Observe, that the questions which come before the Judicial Committee of the Privy Council are questions which proceed from what, without any want of respect, I may call inferior courts—namely, Courts of Vice-Admiralty abroad, Courts in the Colonies, and Courts in India; but what cases have your Lordships to deal with in this high jurisdiction? Not with appeals from inferior or subordinate courts; but you have, in every department, to hear and decide appeals from persons most eminent in those departments, and possessed of the highest authority in the courts below, from decisions of the Chief Justices, from decisions of the Master of the Rolls, from decisions of the Vice-Chancellors in Equity, from all those who have the highest authority, from all those who are themselves constituted as Judges in the Judicial Committee of the Privy Council over the inferior courts, you have to hear and decide appeals in this High Court of Parliament; and when I consider the very high authorities from which appeal is made, I think it is at all events a subject for mature consideration how far you should weaken, by the intrusion of numbers, the high and pre-eminent authority of those Judges who now hear and decide upon appeal from those high authorities which I have mentioned.
My Lords, it must not be supposed that at the present moment the noble and learned Lords who preside in the Court of Appeal here are without the means of
Page: 597↓
Earl of Derby:
In law cases, whether they are Privy Councillors or not, we have the power. The Judges in Equity, unless they are on the Privy Council, we have no such power of calling on. How has that arisen? I believe from accident and inadvertence. Till within a comparatively recent period, the twelve Judges exercised a mixed jurisdiction over law and equity. There were among them four who were Equity Judges, but when there came to be a more complete organization of the Courts of Equity, that equitable jurisdiction was taken away
(a) from the Judges, and was transferred to the Courts of the Vice-Chancellors, for example, and the Vice-Chancellors not being included in the number of the Judges, and the Judges being deprived of their equitable jurisdiction, you have in name the assistance of the same persons; but those persons not performing the same functions, you have not practically the advice and assistance of the Judges in equity as well as in law. I shall be corrected if I have made any mistake upon this subject by those who are much more competent to speak on it than I am; but I apprehend that that is the case which undoubtedly exists, that we have the power, in cases of common law, of calling in the assistance of the Judges; but we have not the
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a) This apparently refers to the Court of Exchequer, which had an equitable jurisdiction till lately. See 5 Vict. c. 5. transferring it to the Court of Chancery.
Page: 598↓
Whether those persons so admitted should be admitted for the purpose of assisting and advising; whether the attendance of the whole of them should be required; or whether the Lord Chancellor should have the power of calling for the assistance, and advice, and co-operation, and insisting upon the attendance of some of them named for a specific purpose, is a question well worthy of the discussion and the consideration of the Committee. It is one upon which I do not presume myself to offer any opinion, nor will I venture to express an opinion whether, upon questions of law, it would be desirable or necessary, beyond giving their opinion, that they should also have the power of giving a vote and forming part of the Court. At present, my Lords, they are not only debarred, when they are summoned for the purpose of hearing a case, from giving an opinion upon it, but they are also debarred from the power of speaking; they are not allowed in the course of the hearing to put a single question to counsel, or to elicit any expression of opinion, or any explanation of a point which may appear doubtful. They can do it, no doubt, through the Lord Chancellor
Page: 599↓
Now, my Lords, in former times the attendance of the Judges, as you perfectly well know, was not a casual and accidental circumstance, but it was one of daily course, and was considered necessary; and we find Lord Somers (a), in the name of the House, strongly and vehemently rebuking the Judges for their neglect in giving their attendance upon the business of the House, which they were bound to give according to their office, and imposing upon them the obligation of attending from the sitting to the rising of this House, under the pain of the high displeasure of the House. That has long since ceased to be the case. It would be impracticable at the present moment, but I think it is a question well worthy of consideration, whether, when a difficult case is to be argued, in equity or in law, the Lord Chancellor and the other members of this House should not have the power of calling upon certain of the most eminent persons in that department, upon the same principle as the Judicial Committee of the Privy Council is constituted, to give their attendance and their aid, for the purpose of hearing and deciding upon the question. I imagine, my Lords, that that is within the power of your Lordships to effect by your own order. That they shall have the power also, if it is thought desirable, of determining and having a vote is, I apprehend, beyond your Lordships' power; and, if thought desirable, can only be effected by the interposition of an Act of Parliament.
_________________ Footnote _________________
( a) Macq. House of Lords. p. 39.
Page: 600↓
One word more, and I have done, thanking your Lordships for the patience with which you have listened to me upon a subject upon which I feel I have very little right to say anything; I mean with regard to
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Page: 602↓
Earl of Derby:
Notwithstanding that, by the judgment of this House by the majority of one, a decision which had been come to below was overruled. I only advert to the case for the purpose of saying, that although under those circumstances, the opinion of the Judges was overruled, and notwithstanding the strong political
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a) The O'Connell case, 11 Cla. & Finn. 155.
Page: 603↓
Page: 604↓
My Lords, I beg leave to move, “For a Select Committee to inquire whether it is expedient to make any, and if so, what, provision for more effectually securing the efficient exercise of the functions of this House as a Court of Appellate Jurisdiction, and to report their opinion thereupon.”
Earl Granville's Speech.
Earl Granville:
My Lords, I have listened with much pleasure to the singularly clear statement which the noble Earl has made with regard to the whole of this subject, and if that subject must be interesting to any one, it must be to your Lordships, who are so much interested in the question. There is one point in which I quite concur with the noble Lord. If it came to a question whether this House was to retain its appellate jurisdiction, the exercise of its functions being prejudicial to the administration of the justice of this country, though beneficial to the House, I concur with him in thinking that there should not be a moment's hesitation in abandoning that jurisdiction. At the same time, I think, I go still further than the noble Lord, in holding that those functions are a very important part of the functions of your Lordships, and go far to support the dignity and utility of the House, and to increase the respect in which it is held in the country. I think, therefore, it becomes us to take great pains to make it as perfect as it possibly can be made.
The noble Earl stated, I think, seven objections, and I think he stated with great fairness all the objections which have been raised against the principle of the appellate jurisdiction of this House. I do not intend to follow the noble Earl by going over as he did some of the answers which might be made to those objections, still less do I intend to follow the noble Earl in his discussion of the different plans which might be
Page: 605↓
Your Lordships, perhaps, will remember that I took the liberty the other day, I hope in terms not offensive to your Lordships, of stating the circumstances of embarrassment in which the Crown and the House were placed by a recent decision of this House
(a). I stated then, as I was authorized to do, that time would be given by Lord Wensleydale for a fair consideration of this important subject. I pledged myself, on the part of Her Majesty's Government, that they would look at the question carefully, without any personal or party feeling, and expressed a hope that we should be met in the same way by all sides of the House. The noble Earl followed, and bore witness to the spirit with which he intended to pursue the inquiry; observing that he, for one, and I believe he spoke for the rest of your Lordships, should feel it to be a painful thing to appear to be, even for a moment, in collision with the Crown on any subject. My Lords, the noble Lord then made some suggestions, and said
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a) The decision as to Life Peerages,—see the Report published by order of the House.
Page: 606↓
_________________ Footnote _________________
( a) The question of Life Peerages.
( b) The difficulty as to Life Peerages.
( c) In the late discussion on Life Peerages, the House of Lords was constantly characterised as one of the “Estates of the Realm,” and the Crown as another Estate. The House, however, is more than an Estate, being composed of two elements, the spiritual and
Page: 607↓
_________________ Footnote _________________
the temporal Lords. Her Gracious Majesty is not an “Estate,” but stands on higher ground; above the three Estates, the Nobility, Clergy, and Commonalty. The legislative power does not reside in the three Estates, but in the Crown and the three Estates. This was the feudal polity, not confined to England; it was the same in Scotland. In France, says Montesquieu, “there are three kinds of Estates, the Church, the Sword, and the Gown; each having a sovereign contempt for the two others.”
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Lord Campbell's Speech.
My Lords, I apprehend that the proposal of my noble friend the Lord President will meet with no objection whatever, but that this motion will be carried nemine dissentiente; and that being so, I should not have troubled your Lordships with any observations were it not that I am about to leave London for the circuit to-morrow morning, and that the Committee may, probably, make its report before I can have an opportunity of attending it. For that reason, I beg your Lordships' indulgence while I very briefly throw out the result of some very anxious meditations upon this subject.
I entirely agree that it is of the greatest importance, not only to the dignity and usefulness of your Lordships' House, but to the public welfare, that the judicial jurisdiction should be retained. It has been looked upon for ages with veneration, and no supreme Court of Appeal can now be constructed which would be a substitute for this House.
My Lords, as a lawyer, I was educated with the most profound respect for the appellate jurisdiction of this House. During many years I was employed in appeals at your Lordships' bar, and I must say, that whether the decision was with me or against me, I was satisfied with the exercise of that judicial jurisdiction, and I believe so were the public.
After I had the honour of becoming a member of this House, for nine years I constantly attended the hearing of every writ of error, and every appeal which was argued at the bar. When my noble
Page: 610↓
For some reason which I cannot explain, a change has taken place, as I am told, in public opinion. How that has arisen I cannot say. I have the most sincere respect for my noble and learned friends who now preside in deciding cases which come before your Lordships. There was one point certainly I did complain of, both in public and in private, that when two noble and learned Lords sat to hear an appeal, and there happened to be a difference of opinion between them, the case was decided merely by an accident (c) affirming the appeal. I believe it would have been much better if a re-argument had taken place before all the Law Lords, and then their decision would have been more satisfactory (d).
Whatever the reason may be, there does seem to be a loud call now for some alteration in the exercise of your Lordships' jurisdiction as a Court of Appeal and the question is, what that alteration shall be.
I will most cautiously abstain from again entering into the question of Peerages for Life. If an Act of Parliament is passed for the purpose, these creations may be introduced, but by an Act of Parliament alone can they be made so as to give the holders of them a right to sit and vote in this House. But I doubt
_________________ Footnote _________________ (
a) Lord Lyndhurst. (
b) Lord Lyndhurst, Lord Brougham, Lord Cottenham, and Lord Campbell. (
c) When the Lords are equally divided, the judgment below is affirmed. Hence some have said that the result is, after all, but a negation; the incident of an “accident.” (
d) In
Beattie v. Johnstone, Session 1843, this was done. 10 Cla. & Finn. 83. It is the rule.
Page: 611↓
You cannot have the Chiefs who are presiding in the Superior Courts in Westminster Hall, because they are necessarily occupied in their own Courts. I myself last session of Parliament sat here four days on an appeal from a Court of Equity, having been very much pressed to do so by my noble and learned friend upon the woolsack; but the circumstance caused considerable inconvenience, and I do say, that it is wholly incompatible with the duties of the Chief of either of the Courts in Westminster Hall to give any effectual assistance in the discharge of your Lordships' duties as Judges of Appeal.
Then, my Lords, with regard to attaching Peerages to office; that is open to this clear objection, that the moment the Judge retired from his office he would lose his seat in this House; and at a time when he might be supposed to be still capable of rendering you assistance, he is absolutely disqualified, because he holds the office no longer to which his Peerage was attached.
With regard to calling up to the House Puisne Judges who have retired from the bench, much aid cannot be permanently expected from that source, because they must be considerably advanced in life, and it can be very seldom that you can have any effectual assistance from such individuals.
The next thing to consider is the suggestion to which my noble and learned friend
(a) opposite, (who has paid great attention to this subject, and whose opinion is entitled to more weight, I may venture to say, than that of any member of this House,) has referred;
_________________ Footnote _________________ (
a)Lord Lyndhurst.
Page: 612↓
A great inconvenience, as has been pointed out by the noble Earl, arises when the learned Judges who advise the House give unanimous or nearly unanimous opinions on one side, and your Lordships decide upon the other. I remember a case in which the Judges were unanimous; that was the celebrated case respecting the validity of a marriage in Ireland solemnized by a Presbyterian minister (a). My noble and learned friend (b) and myself, and one other noble and learned Lord (c), felt it our duty to give an opinion against that of all the Judges, and it was because there was an equality, three to three, that, according to the rule, the judgment was affirmed. That being so, I think that you would not gain anything material by calling in the Equity Judges under the writ of assistance.
My noble and learned friend proposed another plan, which was to refer all appeals to the Judicial Committee of the Privy Council. That tribunal will make his name illustrious, but I think he was rather too fond of his own child when he proposed that your Lordships' should substitute the Judicial Committee of the Privy Council in the place of this House, and be governed by its decisions. It would have been substantially, though not nominally, parting with your appellate jurisdiction altogether, and in a very objectionable manner, because the Privy Council, and consequently, the members of the Judicial Committee, hold their offices during the pleasure of the Crown. To give your appellate jurisdiction to persons who only hold their office during the pleasure
_________________ Footnote _________________ (
a)
Queen v. Millis,
10 Cla. & Finn. 534. (
b) Lord Brougham. (
c) Lord Denman.
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Then comes the proposal which the noble Earl has thrown out, and which, although it will require the most mature consideration, I must say, seems to me to be the least objectionable, and that is, that your Lordships should have a Judicial Committee of this House. My Lords, this is according to ancient precedent. The King's ordinary Council constituted the Judicial Committee of this House; and it appears from our ancient annals that that Judicial Committee had referred to them any questions of law which came before your Lordships' House—that they were considered as a Committee of your Lordships' House; and after that Committee had pronounced its opinion and reported it, then it was that this House formally gave their judgment, adopting that which had been recommended by the Committee.
Your Lordships are aware that you appoint Committees composed not entirely of Peers. I find a great number of instances of Bills committed by the House of Lords to the Judges; to several Lords and the Judges; and to several Lords and the Attorney and Solicitor General. So that you have abundant precedent for forming a Judicial Committee, and then that Committee would consider how the cause is to be decided. The question would be argued judicially before that Committee, and the Committee would make its report, and your Lordships, unless you saw strong reason to the contrary, would formally by a final judgment confirm the decision of the Committee.
My humble opinion at present is, that that Committee should consist of all the Law Lords who are members of this House, the Lord President, and the Chairman of our Committees, and also of a certain number of the Judges of Law and Equity in Scotland and Ireland; and then you would make a selection from
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The Committee would not sit in this House, but in some adjoining room with all the accompaniments of a Court of Justice. I venture to suggest that in this manner a satisfactory conclusion would be arrived at, which I do not see is by any other means so likely to be attained.
I will give your Lordships one instance in which this tribunal, which I now propose to revive, actually sat and adjudicated as a Committee, and having adjudicated, its judgment was adopted as the judgment of this House. That was in a case which occurred in the reign of Richard the Second, between the Prior of Montacute and Lord Richar Seymour;—on a writ of error from the Court of King's Bench. It was not a single instance, contrary to the law, but it was in pursuance of the practice from the remotest times, and it was a most constitutional privilege of this House. This writ of error from the Court of King's Bench came before this House; it was referred to the Judicial Committee, that is to say, the King's Ordinary Council; it was argued before them, and decided in favour of the appellant, and judgment was given accordingly to reverse the judgment in the Court of King's Bench. The judgment of this House recited the reference to the Judicial Committee; it recited that they had decided in favour of the appellant; and then there is the judgment of the House confirming the decision of the Committee, and ordering that the judgment of the Court of King's Bench be reversed, and that the appellant shall be restored to all his rights. Therefore this, my Lords, is a clear precedent for the course which I now propose. (a)
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( a) Nearly 500 years ago (1384) a Parliament was holden at Westminster, where, as according to the well-established usage, still
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The question, I admit, is one of very great difficulty, but I feel that it may be overcome. The subject will require, however, great consideration; and in the Committee I earnestly press upon your Lordships
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adhered to,
Receivers and
Triers of
Petitions were appointed by the Crown. The Receivers were the Assistants. The Triers were the Selecti Judices; in fact, the “Council” referred to by Lord Campbell and described by Lord Hale. The Triers did not sit in the chamber of Parliament, because there were in ancient times no
night sittings, and the public or political business of the country went on at the same time with the examination of private causes. The Triers therefore sat by necessity apart—those for domestic petitions in the Painted Chamber, and those for foreign relations in the Chamber Markolph. Another reason was, the parliaments, though frequent, were short, and dispatch was necessary. But if such a constitution were rendered again effective, the sittings of the Court might be still as now in the House of Lords.—The following extract from the Rolls of Parliament shows the appointment in the 8 Ric. 2. (3 Rolls, p. 184.)
Receivours des
Petitions d'Engleterre, Ireland, Gales, et
Escoce. Sire Johan de Waltham. Sire Richard Ravenser. Sire Thomas Newenham. Sire John Searle, Clerc del Parliament. Et ceux qui veullent liverer lour billes les baillent avaunt p. entre cy & Samady proschein venant au soir.
Receivours des
Petitions de
Gascoigne & d'autres Terres & Pays de par dela la Meer, & des Isles. Sire Piers de Barton. Sire Johan Bouland. Sire Robert Faryngton. Sire Robert Muskham.
Triours des
Petitions D'Engleterre, Irelande,
Gales, &
Escoce. Le Roi de Castill & de Leon, Duk de Lancastre, L'Ercevesq de Canterbirs. L'Evesque de Londres. L'Evesq de Wyncestr'. L'Evesq de Ely. L'Evesq de Salesbirs. L'Abbe de Seint Austyn de Canterbirs. L'Abbe de Waltham. Le Count de Kent, Mareschall d'Engleterre. Le Count d'Arundell. Le Count de Warr'.
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Le Count de Northumbr'.
Le Sr. de Nevill.
Monsr. Richard le Scrop.
Monsr. Guy de Brien.
Monsr. Robert Tresilian.
Mons. Robert Bealknap.
Mons. Johan Holt.
Touz ensemble, ou vi. des Prelatz & Srs. avant ditz au meyns: appellez a eux Chanceller, Tresorer, Seneschall, & Chamberleyn, & auxint les Sergeantz nre Sr le Roy quant il busoignera. Et tendront lour place en la Chambre de Chamberleyn, pres de la Chambre de Peint.
Triours des Petitions de Gascoigne & d'autres Terres & Pays de dela la Meer & des Isles.
L'Evesq de Nichole.
L'Evesq de Norwicz.
L'Evesq de Seint Davy.
L'Evesq d'Excestre.
L'Evesq de Hereford.
L'Abbe de Westm'.
L'Abbe de Glastyngbirs.
Le Count de Cantbrugg.
Le Count de Bukyngham, Conestable d'Engleterre.
Le Count de Staff.
Le Count de Salesbirs.
Le Sr Fitz Wauter.
Le Priour del Hospital Seint Johan Jer'lm en Engleterre.
Monsr. Johan de Cobham de Kent.
Monsr. William Skipurith.
Monsr. Roger Fulthorp.
Monsr. Davyd Hannemere.
Monsr. William Burgh.
Touz ensemble, or vi. des Prelatz et Srs avaunt ditz; appellez a eux Chanceller, Tresorer, Senechal, Chamberleyn, & les Sergeantz le Roi quant il busoignera. Et tendront lour place en la Chambre Markolph.
The Chancellor did not preside in these committees—because he was on the woolsack—as one of the Assistants of the House, and the chief of them. But the Triers, when difficulties arose, could send for him and for the other Chief Officers of State. The petitions were not always of a judicial character; consequently the Chancellor's presence was not always necessary. But if a question
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of law had to be resolved, the Triers were prepared to meet the occasion. Therefore we are to suppose that when the Prior of Montacute's writ of error came, the Triers fortified themselves. If the reader, therefore, will refer to the Rolls of Parliament (a) he will find in Norman French the pleadings and proceedings of which the following is an abridged translation:—
The Prior of Montacute presented the following petition:—To our Sovereign Lord the King, and the Lords in this present Parliament, the Prior and Convent of Montacute humbly shew, That whereas the Lord Richard Seymour brought a writ of scire facias against the said Prior, returnable in the King's Bench, to have execution of the manor of Tyntenhall, by reason of a fine levied thereof, between one Richard Lovell and certain other persons, which manor formed a large part of the substance of the said Priory, &c.; to which writ the said Prior made appearance in Court, &c., and thereupon judgment against the Prior, &c., upon which the said Prior and Convent supplicate their very gracious Lordships to examine the matter, &c. For otherwise the said Priory would be ruined and annihilated for ever. Which petition was read in Parliament, and the record and process brought in before the Peers of the realm, Justices and others; and the matter being diligently debated and examined, it was ordered that the enrolment of the record should be amended, so as to admit certain pleas of the Prior; and afterwards such enrolment having been reformed, the Prior and Convent presented another petition, addressed— “To our very redoubted Lord the King, and his noble Lords in this Parliament,” alleging divers errors, and praying that it might be ordered in that Parliament that certain members (“genz”) of the Kings Council might be assigned, before whom the said record might be carried; and that they should have full power and authority, by virtue of such order, to hear the assignment of errors, and to summon the said Richard Seymour to be before them, by a certain day to be by them appointed, to hear the assignment of the said errors, and righteous judgment (b) thereupon to give. And this petition being read in Parliament (c), it was agreed by the assent of Parliament that the Prior should have a writ of scire facias, returnable the next Parliament, to summon the said Richard
( a) Rolls of Parliament, vol. iii. p. 172. 186. See Macq. House of Lords, 677.
( b) The original is “Droiturel juggement eut rendre.”
( c) Parliament here means the House of Lords.
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Seymour to be in the next Parliament, there to hear the errors by the said Prior alleged, and such besides to do and receive as by the law of the land should be judged in that behalf; and it was ordered that the record and process should be in the next Parliament, &c. Accordingly in the Parliament holden at Westminster, 8 Richard II., 1384, the Prior of Montacute moved his case for judgment. The result is thus stated:— “Liquet manifesto Cur. in Parliamento quod erraverunt. Ideo, ob errores illos, consideratum est quod judicium pdem. tanquam erroneum, revocetur, cassetur, et penitus adnulletur, et quod pdcus. prior plenarium habeat restitutionem manerii, &c.”
This case proves that it was usual to devolve on the Council the examination of such procedings. It shows that this was the understanding of the nation at the time; and that the Council, under the authority of a reference from the House, might not only investigate, but determine, writs of error in Parliament. The case, on the other hand, affords evidence that the Council was riot supposed to possess inherent jurisdiction of its own; for its authority to deal with the Prior's case was to be derivative. It may be asked, how it happens that the Prior's prayer for a reference is not in words complied with by the Lords? The terms of the original order are: ‘Etoit agardez par assent du Parlement’ that the Prior should have a writ of scire facias returnable the next Parliament. Here is certainly no reference per expressum to the Council; but it is to be observed that, a very few days before, the general assignment of Triers had been made; and therefore to make a special reference to them in each case was perhaps deemed unnecessary—or, if made, it was not recorded, or, if recorded, it has not been preserved. The Lords apparently gave assent to the Prior's petition simply by awarding a writ of scire facias, returnable the next Parliament. For it was in the Court of Parliament (though not in the Chamber of Parliament), that the errors were to be tried. And hence the final judgment of reversal is pronounced by the Court in Parliament, that is to say, by the House of Lords, which, in a judicial sense, always meant, and still means, the Parliament.
The remarks of Lord Campbell, in a note to the fourth edition of his “Lives of the Chancellors,” vol. i. page 26, should be studied by those who have had a hand in the changes lately wrought on the Great Seal, as well by those who have to reflect on the present plight of our highest Court of Judicature. “Recent events, (says his Lordship, writing in September 1856), have been unfortunate
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for the office of Chancellor as connected with the Appellate Jurisdiction of the House of Lords. Some change in the tribunal became necessary. A sudden belief arose in the public mind that the jurisdiction was usurped. Instead of recurring to expedients which might have been rendered effective by their own authority, the Lords preferred a scheme for which the sanction of the two Houses, as well as of the Crown, was necessary. The Bill for this purpose being thrown out by the Commons, in what a state is the Lord Chancellor for the time being now left!”
Lord Campbell adheres to the project of a Judicial Committee, following the advice of his illustrious predecessor, Lord Hale (see Hale on the House of Lords). This suggestion means something in the nature of a revival of the Court of Triers, who (if they did not originate with) enjoyed, at least, the sanction of our English Justinian, the earliest record we have of their appointment being early in the reign of Edw. I. The “ Responses by the Council” of that period show that the Council and the Triers were the same individuals. We have said that these Triers are still continued. The Journals at the opening of every Parliament show this. But it is probable that not above one or two of these Rois Fainéants are aware of their own existence as such. The Crown has gone on appointing them, and the faithful clerks have persevered in recording them, without a hint given to the nominees, although they are vested with authority of a very high nature—almost the highest; and not only in this country, but in “Gascony and Aquitaine!”
In 1677 a Committee was appointed to consider how far it would be expedient to revive the Court of Triers. No result ensued.
On the 11 Nov. 1852, the following appointments took place (doubtless, we must suppose,) by Her Majesty's command:—
Les Recevours des Petitions de la Grande Bretagne et D'Ireland.
Messire John Jervis, Chevalier et Chef Justicer de Banc Commune.
Messire William Henry Maule, Chevalier et Justicer.
Messire William Russell, Ecuyer.
Et ceux qui veulent delivre leurs Petitions les baillent dedans Six Jours procheinment ensuivant.
Les Recevours des Petitions de Gascoigne et des autres Terres et Pays de par la Mer et des Isles.
Messire Frederick Pollock, Chevalier et Chef Baron de l'Ex-chequer de la Reyne.
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Messire James Parke, Chevalier et Justicer.
Messire James William Farrer, Ecuyer.
Et ceux qui veulent delivre leurs Petitions les baillent dedans Six Jours procheinment ensuivant.
Les Triours des Petitions de la Grande Bretagne et D'Ireland.
Le Duc de Rutland.
Le Marquis de Bath.
Le Marquis de Ailesbury.
Le Count de Derby.
Le Count de Cardigan.
Le Count de Hardwicke.
Le Count de Malmesbury.
Le Count de Wilton.
Le Count Vane.
Le Count Cawdor.
Le Viscount Hawarden.
Le Viscount Combermere.
Le Baron Saltoun.
Le Baron Redesdale.
Le Baron Ardrossan.
Le Baron Colchester.
Le Baron Penshurst.
Le Baron Lyndhurst.
Le Baron Wynford.
Le Baron Abinger.
Le Baron Raglan.
Touts eux ensemble, ou Quatre des Seigneurs avant-ditz, appellant aux eux les Sergeants de la Reyne, quant sera besoigne, tiendront leur Place en la Chambre du Tresorier.
Les Triours des Petitions de Gascoigne et des autres Terres et Pays de par la Mer et des Isles.
Le Duc de Manchester.
Le Duc de Northumberland.
Le Marquis de Winchester.
Le Count de Westmorland.
Le Count de Sandwich.
Le Count de Jersey.
Le Count de Desart.
Le Count Nelson.
Le Count de Stradbroke.
Le Viscount de Stratford de Redcliffe.
Le Baron Colville de Culross.
Le Baron Polwarth.
Le Baron Tyrone.
Le Baron Sheffield.
Le Baron Glenlyon.
Le Baron Brougham et Vaux.
Le Baron Bateman.
Touts eux ensemble, ou Quatre des Seigneurs avant-ditz, appellant aux eux les Sergeants de la Reyne, quant sera besoigne, tiendrout leur Place en la Chambre du Chambellan.
With this commendable attention to forms, it were to be wished that greater care had been bestowed upon substance. Throughout the Plantagenet reigns, as well as previously, things went on satisfactorily. But Henry VII. set up the Star Chamber. His son and Elizabeth made light of Parliaments. In her reign an appeal from the Channel Islands was received by the Privy Council,—the first instance of the exercise of independent appellate jurisdiction
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by that body, which Lord Coke calls a Board and not a Court; and which Lord Hale (who treats systematically of all the existing Jurisdictions) does not mention at all; except as being subservient to the House of Lords. Then was the time for the Lords to remonstrate and make a stand, for all foreign appeals lay to them by the ancient Constitution (Macqueen's H. of Lds. p. 683.) But they were silent, and thus gradually the Privy Council, from being ancillary, became a rival jurisdiction, and it has been constantly dilating ever since. In the reign of Charles II. ecclesiastical and maritime appeals went to it against the opinion of Lord Shaftesbury, who correctly laid it down that the Court of Parliament, where “His Majesty was highest in His Royal Estate,” was the universal superintendent of all inferior tribunals.
Considerably reduced or shaken by these encroachments from without, the Lords suffered perhaps more from their own neglects and mistakes within.
Thus, first, they dispensed with their Assistants, the learned Judges, except on grave occasions. This was, perhaps, their greatest error—an error, however, for which the Chancellor or the Government of the day, rather than the House itself, was blameable.
Secondly, they made an order (9th June 1660) that the Judges should not be allowed to speak till they were spoken to; an order entirely without precedent and without authority, especially when we remember whose Court the House is, whose servants the Judges are, and under whose mandate they come there, not to hold their peace, but to give good counsel and assistance to the Crown. In the Second Report on the Dignity of the Peerage (note 1. p. 449), it is stated that the order of 9 June 1660, “made on the Restoration of Charles II., and probably reviving old standing orders of the House destroyed or lost during the confusion which had preceded, marks the character in which those persons were summoned.” The character in which those persons were summoned appears from the writ addressed to them, and the services they performed are shown by the Rolls of Parliament. There is no indication that we can find of any previous order resembling that of 1660; but that order is still enforced; so that a Judge in the House of Lords cannot ask a learned Counsel what book he is citing in argument. The question must be put through the mouth of a Peer.
Thirdly, a fiction, or rather fond fantasy, was devised in the last century, that Peers inherited law by descent, or acquired law by
( a) Earl of Eglinton.
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patent. The satire of Swift did not prevent the great Lord Chancellor Hardwicke from saying, that if he went wrong in Penn v. Baltimore, ( 1 Ves. Sen. 446,) his errors would be corrected by a Senate equal to that of Rome itself. In every case that went from Chancery, in his time, to the House of Lords, he was himself the Roman Senate, and affirmed in judicial solitude his own excellent decisions. Yet after this was Blackstone ready to take up the wondrous tale of Peers “bound upon their conscience and honour (equal to other men's oaths) to be skilled in the laws of their country.”
The fourth neglect, or mistake, was the practice which had crept in during Lord Eldon's time, of dispensing with the Chancellor's attendance, and getting the judicial work done by deputy speakers not members of the House; or, as in Lord Gifford's case, taking one of the Judges and calling him up with a Peerage for the avowed purpose of relieving the Chancellor from the performance of his cardinal duty.
When Sir John Leach and Chief Baron Alexander sat alternately as “Deputy Speakers,” to hear appeals in the last year of Lord Eldon's Chancellorship, three “lay figures” (we use Lord Derby's expressive metaphor, suprà, p. 583) were associated with them. At the close of an argument, the “Speakers” (not being able to speak) made a sign; in an adjoining room they gave atterance to their opinions, and then returning to the woolsack, resumed their taciturnity. A “ lay figure” (who had not heard, perhaps, a word of the argument, and who had not taken the trouble to go with the deputy speaker into the place where that learned person had explained himself) rose and gravely moved that the judgment complained of be “ reversed.” This mode of satisfying the suitors, and enlightening the inferior tribunals, did not last long; but it lasted long enough to bring reproach on the highest tribunal of the country.
The Chancellor's first duty is to attend the House of Peers; the head of the law sat on the woolsack long before the Chancery was a “Court,” and long before the legal College of Lincoln's Inn was founded by Henry de Lacy (a).
Fifthly, a certain remissness,—in leaving too much to the Government of the day;—for although Peers are not necessarily profound
( a) Per Lord St. Leonards: “I hope I shall never see this House, in its Appellate Jurisdiction, act in any other way than under the Presidency of the Lord Chancellor for the time being.” Evid. before the Comm. p. 178.
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jurists, yet are they all interested in the satisfactory administration of judicial business in the House. They ought to see to this, and not abandon it entirely to professional persons. We believe that Lord Derby has the distinction of being the first member of this illustrious body, who, neither being a lawyer nor a member of the Government, felt it his duty to bring forward resolutions affecting the appellate jurisdiction; and he did so on the ground that the Peerage generally had a deep concern in what Lord Brougham calls the “flower of their prerogative.” See Life Peerage Debate, p. 422.
If the Lords would but “collect their scattered elements of strength, and revert to their pristine institutions” (a), all would be right. Lord Lyndhurst told them, on the 23d June 1851, (see Hansard,) that “the best way to proceed was in the manner that most corresponded with the ancient constitution of the House.” This, he would have shown, had he brought on the motion which he promised ( suprà, p. 579), but that motion was intercepted by the more rapid proceedings of Lord Derby.
All agree that to create a proper court of ultimate appeal is difficult; but in this country the difficulty has been aggravated by trying to keep up two courts of ultimate appeal, exercising rival and clashing authority. The effort should be to secure one good supreme tribunal, having a large stock of Judges, not all sitting constantly together, but liable to be called upon to do duty as their respective qualifications fit them for the varying exigencies of each case, keeping in view a principle excellently put in a late number of a distinguished publication ( Edinburgh Review, July 1856), that a “supreme court of appeal should possess an amount of judicial authority and legal weight, exceeding the combined strength of the courts, whose judgment it has to review.” The Reviewer (who has evidently thought long and deeply on this subject,) further says that there should be “some members sitting constantly in the Court of Appeal to maintain the uniformity of its practice, and occasionally to take a broader view of the questions brought under the cognizance of such a tribunal. The combination of such minds with some of the Judges engaged in the daily business of other Courts, is extremely important. The Exchequer Chamber therefore is objectionable.” By recurring to the original constitution of the House, by summoning the Equity Judges, ( see the opinion of Sir F. Kelly, infrà, p. 665), by recalling the ordinary Council—the Judicial Committee,—by re-uniting them with the body from whom they have been unskilfully and unhappily
( a) See “Letter to Lord Lyndhurst, on the House of Peers in its Judicial Character, as it was, and as it is,” 1856.
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My Lords, it is a great satisfaction to be able to rise to speak on this question, and to feel assured that it is in no respect a party question; but, at the
_________________ Footnote _________________ severed for two centuries, by placing them all again under the same roof, (as recommended by Lord Campbell on the 11th April 1842), and by some other improvements corresponding with the expansion of the empire,—“a constellation of lawyers” (Lord Hale's expression) might be secured to the House of Lords, fitted for the dispensing of every kind of law, and competent to discharge any amount of business. If the Chiefs of the Common Law Courts were relieved from the Circuit, and from Jury trials, they might be constantly in the House, except during Term time. This would be a prodigious acquisition; and it would involve no change; for the Writ of assistance declares that all other things are to be cast aside in obedience to its Summons. Things rational do not die by disuse. Even a sinful absurdity, Trial by Battle, unseen for three centures, required an Act of Parliament to extinguished it. The contrary doctrine is dangerous where much stands on antiquity. (See Twiss's Life of Lord Eldon, vol. 2, p. 336; Hansard 18 June 1819). The union of the legal with the legislative power weighs, and has always weighed, in the popular apprehension, giving the Court of Parliament an authority quite peculiar, and differing from that of other tribunals—the difference being one of kind as well as of degree. As to Colonial and Foreign appeals, we doubt whether it would not be an advantage to have them heard in a Tribunal more in the public eye than the Privy Council. Our dependencies should look for justice to the Imperial Parliament. And here we cite the remarks of Sir John Romilly before the Committee:— “It appears desirable that the Appellate Tribunal should not consist exclusively of Lawyers. It should continue to be the House of Lords in its essence, and not merely in form.” The Vice-Chancellor Stuart, in the same spirit, deprecates “any change that would prevent the interference of the Lay Peers;” his Honor, in another place, commending “the number of checks which the present system provides.” This cannot refer to the “lay figures,” for they are no checks, but proclaim incompetency. Such men as Lord Derby, Lord Ellenborough, Lord Grey, the Duke of Somerset, Lord Stanhope, Lord Redesdale, Lord Granville, the Duke of Argyll, Lord Eversley, and many others, would undoubtedly be of sendee on appeals, particularly on foreign ones, because errors seen by them in their judicial character would be put by them, as Members of the Legislature, in a train for rectification. Of old, the law was administered where it was made. This was what gave the Court of Parliament a jurisdiction and an attraction distinguishing it from all other Tribunals.
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About the year 1778, four Peers having delivered their opinions against the twelve Judges on a legal question, Dr. Johnson said:—“Sir, there is no ground for censure. The Peers are Judges themselves; and supposing them really to be of a different opinion, they must, from duty, be in opposition to the Judges.” In Lady Radnor's case, (Cruise's Dig. vol. 1. p. 516), by yielding to the pressure of conveyancers, the Peers not only did great injustice to her Ladyship, but decided in opposition to the general principles of Equity as understood in the Court of Chancery; in effect uprooting the ancient Right of Dower, which the Legislature will be asked ere long to re-establish, (see Edinburgh Review, of January 1857, p. 192). When subtleties become too sublimated, then it is that the Lay element may prove a corrective. Justice is better than law—yet is it often sacrificed at the shrine of technicalities. The presence of the Peerage lends dignity to the tribunal. But this supposes that the Peers attend to what is going on. They did so in former times, and exercised over the lawyers a wholesome supervision.
The Appellate Jurisdiction of the Queen in Council has been contrasted with the Appellate Jurisdiction of the House of Lords. The fact is that the principal defects of the Privy Council, as a Court of Appeal, have been corrected by Lord Chancellor Brougham's Act of 1833; but it was long before this tribunal attained to the high reputation it now enjoys. As late as in 1840, Lord Cottenham complained of its want of a head to keep order in its proceedings, its uncertain component parts, the difficulty of getting them together, and its irregular precarious sittings. And Lord John Russell declared in the House of Commons on the 5th August 1840, that “he thought this was a discreditable, if not a disgraceful state of one of the great Courts of this empire.” Yet this is the identical Court which has recently received the unqualified commendation of the most eminent members of the bar. The change is mainly due to the care which has been taken by the successive Lords President, by Mr. Reeve the discerning Registrar of the Privy Council, and by the members of the Committee itself,— that no cause should be heard without the attendance of the Judges best qualified by experience, station, and ability to decide it. Still Lord Campbell's objection ( suprà, p. 612) holds good; and one of Lord Cottenham's complaints is unsatisfied. The Judicial Committee has no chief. The Lord President is not a legal functionary. The members sit at a table, and are less like a Court than any other judicial body in the world.
But to return to the House of Lords. That fabric has traditions to stand upon. The objections which have begotten clamour are
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removeable without organic change, and with but little legislative aid. The two Courts should be reunited. There must be again what Lord Hale calls “a Court as it were within a Court.” And it must sit, like other Courts, throughout the legal year, and daily, as it did in the Norman and Plantagenet times.
By an Act 14 Ed. 3. c. 5., a Court formed of a Committee of the House was established, consisting of one Prelate, two Earls, and two Barons, who were to be chosen at every new Parliament. This tribunal, though long out of use, had a wise design, that of obviating the inconveniences which arose from the want of a Supreme Court of Appeal during the recesses of Parliament. There is, therefore, ample warrant for the House sitting judicially after ceasing to sit legislatively.
The Statute suggests that upon certain matters the Courts below did not adventure to decide. The Rolls of Parliament abound in entries showing that where the Judges desired to have a resolution of their doubts, or relief from a too heavy responsibility, they adjourned questions from Westminster Hall to the Court of Parliament, “propter difficultatem;” for it was supposed that here were lawyers who had the deepest erudition, the most varied experience, and the widest circumspection.
The necessity for a “Constellation of Lawyers” in the House arose mainly from this, that its decisions settled the law, and bound itself as well as subordinate tribunals. A judgment by the Lords on an appeal or writ of error is conclusive upon all except the legislative power, which, no doubt, may alter it; but how? By altering the law, which the House itself cannot do. The theory of the Constitution seems to be that the ultimate appellate jurisdiction is infallible. It cannot err. The well-known case of Reeve v. Long (Salk. 227; 2 Cruise's Dig. 336) seems in point. There the reversal by the Lords was against the opinion of all the Judges. A general Act was passed (10 & 11 Will. 3. c. 16), altering the law laid down by the House, but not touching the decision. The principle on which the Act proceeded would appear to have been, that what the Court of last resort decides, however inconvenient or unjust, is law, and is to be set right only by Parliament. Hence, even where the law Lords differ in opinion,—where they are equally divided in giving judgment,—and where, consequently, as some may irreverently imagine, the soundness of their final determination may be questioned, it will nevertheless be as good law as if the Peers had all cordially concurred in voting it. Thus, in The Queen v. Millis, 10 Cla. & Fin. 534, Lord Lyndhurst, Lord Cottenham, and Lord Abinger were of one mind; Lord Brougham, Lord Denman,
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and Lord Campbell of another. The decision was said to have been but a negation, proceeding upon the ancient rule of the law, Semper præsumitur pro negante. But the Court of Exchequer, in Catherwood v. Caslon, 13 Mee. & Wei. 261, treated this as a light mode of dealing with a judgment of the House of Lords. They looked to the result, and there they found that the House, as a House, had given a judgment; and then they said, by the mouth of the learned Baron Parke, “that authority binds us.” The contrary doctrine, Lord Campbell holds, would endanger titles (a). It will be found that the House itself has never revoked what it has once deliberately laid down on an appeal or writ of error. Lord St. Leonards, indeed, is of opinion that although it cannot “reverse its own decisions, it has the power of correcting an error in Law in future cases” (b). But, with great deference to his Lordship, let us suppose that the Lords were now, in 1857, to entertain misgivings respecting the principle on which they decided the great Bridgewater case, in August 1853 (c)—is there any power short of a statute that could alter the law of that celebrated adjudication? And is not the House itself as much bound to. conformity as the other Courts of the country? In the recent case of Cochrane v. Baillie, Lord St. Leonards said (12 March 1857), with reference to a judgment on a Scotch appeal, “That simple naked point was decided by this House, and is now the law of the land” (d).
The House without the concurrence of the other branches of the Legislature certainly cannot alter “the Law of the Land.” This was what Lord Mansfield meant when he said “the absurdity of Lord Lincoln's case is shocking. However it is now Law,” and must be followed.—(Douglas' Rep. 695.)
These considerations seem strong in favour of those who wish to protect the House from all possible miscarriages, whether in principle or practice, in substance or appearance.
Decisions below are never cited to the House as authorities, because it is bound by no decisions but its own. The Lords, therefore, are careful how they notice cases from other Courts, least they shake or appear to confirm them.
( a) See 3 II. of L. Cas. 391, where Lord Campbell said: “My opinion is, that this House cannot decide something as law to-day, and decide differently the same thing as law to-morrow; because that would be to leave the inferior tribunals and the rights of the Queen's subjects in a state of uncertainty.”
( b) 1 Macq. Reports p. 791.
( c) Egerton v. Lord Brownlow, 4 H. of L. Cas. 1.
( d) 2 Macq. Reports p. 541.
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The admirers of “single-seated justice” (if the phrase be English, or has meaning,) will learn with surprise, that when the French Court of Cassation sits, in full conclave, forty-nine Judges are present; that is to say, three Courts, each of sixteen Judges, unite (with a President at their head) to form the Supreme reviewing tribunal of the Empire. And yet it appears that a decision by this formidable combination, pronounced en audience solennelle (toutes les Chambres réunies), does not fix the law (a), so as to make it absolutely binding, the French Jurists caring little, or comparatively little, for precedent, and going, or professing to go, all upon principle. See infrà, p. 679.
Much was said in the Committee as to the number of Judges necessary, or proper, to constitute a tribunal of ultimate appeal. Very valuable opinions on this point were delivered by witnesses entitled to the greatest attention. (See infrà, p. 655.)
In a late case at Lincoln's Inn (19 July 1856), the Court being composed of only two Judges, Lord Justice Knight Bruce gave his sentiments as follows:— “The Lord Justice Turner has, with the Vice-Chancellor, come to a conclusion at which I have been unable to arrive. Finding that my Brother's conclusion renders my opinion immaterial, I wish the parties not to be delayed on my account. Accordingly, without my concurrence, as without my dissent, the appeal must be dismissed.” The course taken by Lord Justice Knight Bruce, though ingenious and well intended, (under difficulties created by the Legislature,) raises the question discussed, infra, p. 665, 666. Mr. Roundell Palmer holds that “in Courts subject to appeal, the reasons which influence the minds of the different Judges should appear, in order that they may be considered and reviewed.”
The people of Scotland have felt and evinced a feeling characteristically “fervid” on the subject of their appeals (b). They all, however, admit that the Court of last resort must be in the metropolis of the Empire. Lord Cockburn, in his Memorials, owns that Scotland itself is too narrow; while the profound Sir Islay Campbell acknowledges the benefits which the adjudications of this House have conferred upon Scotch jurisprudence.
( a)This was mentioned by Lord Brougham in the Committee. See the Evidence before the Comm., p. 16, sed vide the remarks of M. de la Chere, infrà. p. 683.
( b) “Suppose (says Lord Chancellor Brougham) a decision of the thirteen Judges of Scotland appealed against. It was to be adjudicated upon by a single individual, who was, perhaps, as ignorant of the law of Scotland as of the law of Japan.”—Times 3 Sept. 1831.
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Those benefits are sometimes as conspicuous in affirmances as in reversals. This is shown by Lord Brougham's judgment in the famous Warrender case; a judgment which verifies the remark of Mr. Hume that in matters of reasoning the arguments, when just, can never be too refined.
If it be probable that the assistance of a Scotch Judge would be of use, it is certain that the exclusive devolution upon him of Scotch business would be mischievous, and the bare imagination would be as bad as the reality. This would make it necessary to secure strong colleagues.
One source of dissatisfaction for the last forty years has been a subordinate tribunal in the House called the Appeal Committee, which is appointed to consider and report on matters of practice. No one can tell when this little court will convene, or, with certainty, who may compose it. Lord Cranworth since his appointment to the Great Seal has always sat in it. Lord St. Leonards never once came near it. The matters generally before it are indeed unworthy of such high cognizance; yet, to do them properly is a work of time and of labour and care.
A petition presented to the Appeal Committee on the first day of a session may not be disposed of till the last, when the object has, perhaps, become impracticable, or is no longer desired by the parties.
The Appeal Committee expires with the session; and if a petition has received no decision, the application, if persisted in, must be renewed by a fresh petition (involving fresh fees) in the ensuing session.
No Counsel attend the Appeal Committee—nor is the business generally of such a kind that Counsel could much assist in it.
Sometimes the Committee gives no decision itself, but, when perplexed, reports that the matter should go back to the House, —or, what is worse, that it should be argued along with the merits at the Bar. Parties are, therefore, obliged to be prepared, perhaps, at great expense, with an array of counsel and a pile of printed papers on the merits, although it may turn out, after ten minutes talk at the Bar, that the merits cannot be gone into.
The business before the Appeal Committee is occasionally important to the parties; but the bulk of it is mere routine, with which the Officers of the House could deal better than a Committee of Lords, who ought to assemble only upon matters of some weight or doubt; and even then, the Officers of the House ought first to examine and decide. If the parties acquiesced, there would be an end of the affair. In the event of dissent, the Officers should prepare a statement of the point, with the precedents and authorities, so as that the Appeal Committee could make resolutions with satisfaction
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to themselves, and with a constant eye to uniformity of decision,so invaluable in the practice of Tribunals.
The Appeal Committee originated with Lord Eldon, who, persecuted for arrears at Lincoln's Inn, grudged every moment spent upon the woolsack, or on the judicial business of the House. He thought to get some relief, however small, from the Appeal Committee. The same motive led to the appointment of Lord Gifford as Deputy Speaker, in 1824 and to the more curious nomination of the Dummies in 1827 (ante, p. 622). Thus, for the convenience of one man, (a good man certainly, let us even say a great man,) a Tribunal, the most illustrious in the world, and coeval with the monarchy, was made for a time, we are constrained to say, a little ridiculous (a).
A singular notion is entertained that the Committees of the House of Lords have no power to swear witnesses, and this because the Committees of the other House have no such power. But the House of Lords is the Court of Parliament; the Commons are only a representative assembly (b). The Lords' Committees are an effluence of themselves. The House cannot look judicially at testimony not coming before it through the medium of an oath. The old Court of Triers examined witnesses. That they put them upon oath, cannot be doubted. The power of swearing is incident to the judicial office, and comes from the Crown.
But then it is said that a Committee on a Legislative Bill is not a Judicial Committee. Why not? When the House takes evidence on a Legislative Bill, the evidence is on oath, and the proceeding
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( a) From 1806 to 1828, the first Lord Redesdale sat regularly in the House of Peers, advising on judicial business. In learning, some have thought that he was equal to Lord Eldon. He had powers of exposition too, and excelled as a legal writer. The laborious inquiry into the Peerage was carried on under his superintendance; but he could not have written the Reports; for these are contradictory and often inaccurate. It is singular that the Scotch lawyers, in acknowledging their obligations to Lord Eldon, (Mr. Moir, for example, in his able pamphlet,) forgot Lord Redesdale, who assisted Lord Eldon in every one of the great Scotch cases. These two legal luminaries somehow contrived always to agree in their judgments,—even in Innes v. Jackson, where Lord Eldon's decree was reversed. 1 Bligh's Rep. 173.
( b) It may however be a very fit thing that the House of Commons and their Committees should have power to put witnesses on oath. The member for Midhurst (Mr. Warren) has given notice of a motion on the subject, undoubtedly one of great importance, regard being had to the magnitude of the interests disposed of on testimony given by witnesses unsworn and sitting at their ease on a level with the Judges.
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judicial. The House does not change its character with the function it performs. It is still the Court of Parliament.
If this be so, why are scores of railway and other witnesses sworn before the House, while causes are being heard? Why is the amenity of the Court ruffled by crowds of eager and burly persons pressing upon the Bar while learned counsel are speaking, or while the Lords are, perhaps, engaged in the very act of delivering their judgments?
On the 13th March 1857, Lord Campbell gave notice (a):—
“That with the view of expediting and generally improving the proceedings of Select Committees, he should move a standing order to the effect, that the oath to witnesses should be administered not necessarily at the bar of the House, but when deemed fit, before the Select Committees. At present the greatest inconvenience resulted from its being necessary that witnesses should be sworn at the bar of the House. Judicial business was sometimes interrupted in consequence of a crowd of witnesses being collected at the bar; and the expedient was occasionally resorted to of hearing them unsworn before Select Committees, and swearing them afterwards if it were thought necessary.” To this the Lord Chancellor replied, by observing that he “did not see his way quite so clearly as his noble and learned friend to the assumption that their Lordships could delegate to other persons the power of administering an oath. It might be matter for consideration whether an Act of Parliament would not be necessary. As at present advised, he should feel a difficulty in drawing an indictment against a person who had taken a false oath before a Select Committee of their Lordships' House exercising a delegated power to administer oaths.”
When a Commission is issued by a Court of Justice to a person not having a judicial character—an English Barrister or Scotch Advocate for example—he examines the witnesses upon oath under a delegated authority. This authority may be either per expressum or by implication. In either case the Commissioner executes his function on the principle that the evidence he is to report must have that sanction which the Court itself, if examining the witnesses, would impose. He is to consider himself, therefore, pro hâc vice, as the Court.
When, again, a Commission is issued by a Court of justice to a person who has a judicial character, but no antecedent jurisdiction over the subject matter, he also administers the oath under a delegated
( a) Times, 14 March 1857.
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authority; because, although his office is judicial, he is not entitled to swear the general public.
An oath, however false, will not amount to perjury if the person administering it, although a Judge, is exercising an assumed or volunteer authority; Hawk. P. C. b. l. c. 69. s. 4; 2 Russ. by Greaves, 599.
If the House of Lords were to grant a commission to two Judges of the Court of Queen's Bench, say in a Peerage case, those learned persons having no antecedent jurisdiction, would administer the oath, not by their own, but by a derivative authority; yet the witnesses, if they swore falsely, would be subject to the pains of perjury, just as much as if they had given evidence at the trial of a cause before the Chief Justice of England and a Jury.
In the Lovat Peerage case, the House of Lords granted a commission to two Judges of the Court of Session to examine witnesses in Scotland. The Petition for this Commission, 24 April 1826, stated that it was in pursuance of “former precedents.” The Commission was issued with the assent of persons not very likely to be wrong in their law—Lord Eldon and Lord Redesdale. The power given was “to examine witnesses upon oath.” Many persons accordingly were so examined under that Commission. The oath administered was in pursuance of the Commission. The power to administer it came from the House of Lords; the Scotch Judges having no antecedent jurisdiction over the subject matter, and no right to swear persons except upon questions brought before them secundum cursus curiae.
But it may happen that a Commission is issued to a person or persons not only vested with a judicial office, but vested also with an antecedent jurisdiction over the subject matter. Thus, upon references made by the Court of Chancery to the Master, the Master examined all the witnesses upon oath, not under any authority imparted to him by the reference, but ex proprio vigore by virtue of his office, an office in its nature judicial, and giving him an exclusive authority to execute the reference.
This comes near the case of the House making a reference to members of its own body, who have in them not only the judicial character but the antecedent jurisdiction.
If these suggestions are well founded, they go to establish the power of a Committee of Peers to put witnesses on their oaths with reference to matters as to which those Peers possess independently an original or inherent jurisdiction.
By virtue of a Commission from the House, in the Lovat case, Witnesses were examined upon oath in a remote corner of
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Inverness-shire; and it is presumed no one will doubt that, if those witnesses had prevaricated, they might have been indicted for perjury, unless we suppose that Lord Chancellor Eldon and his profound coadjutor Lord Redesdale miscarried in the advice which they gave to the House.
Then where is the difference between an appointment of a Commission and a Reference to a Committee? There is a difference, and a considerable one too; but it is all in favour of the Committee, who inquire, indeed, by direction from the House, (of which they are a part), but who swear witnesses by their own authority, or by a power more easily communicated to them than to strangers, a power to be exercised, not in the Provinces, but in the Palace of Justice, and almost within hearing and sight of the woolsack and the throne.
The question has been made a little difficult by the course taken for some time under an impression that Peers could not carry with them their judicial faculty and their jurisdiction out of one chamber of Parliament into another. And this but shows the danger of tolerating new practices without due consideration of their effects. The Lords, we believe have, the remedy in their own hands, if they would but use it.
The theory and working of the feudal Parliaments stood with the reason of mankind; but, owing to the long intermissions of their sittings during the Tudor and Stuart reigns, the original practice came to be forgotten; for the rolls and journals were not printed in those days: and when Lord Chancellor Clarendon returned from Bruges with his Master and the Great Seal in 1660, there was no one to tell the old and rational method of proceeding. Hence the deviations.
The House, however, rests securely on its ancient basis; and we may say of it what Andrew Fairservice well said of the Glasgow Cathedral:—“It's a brave Kirk—nane o' yere whigmaleeries and curliewurlies and opensteek hems about it,—a' solid, weel-jointed masonwark, that will stand as lang as the warld, keep hands and gunpoother aff it.”
[The substance of the preceding Note has been put together very much at the suggestion of Sir John Lefevre, who most kindly placed materials at the disposal of the writer, with a view to the inquiry of last Session. Passing strange, it seemed that Sir John Lefevre was not examined before the Committee; and, perhaps, more inexplicable still, that Mr. Reeve, the experienced regulator of the Judicial Committee, was not asked a question].
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Her Majesty's Solicitor General spoke in another place (I speak only from what I have seen, and I dare say the expressions were exaggerated), with his authority as a member of the Government and a leading member of the bar, of the manner in which appeals to this House were conducted, which must infallibly lead most men to doubt the propriety of this House retaining its jurisdiction; or, if it does not, cast censure upon the persons who undertake the duty of advising your Lordships in that respect. Now, I am about to read a few words to your Lordships from a publication which contains a report of all the cases in all the Courts, and which is usually exceedingly well conducted, and with great propriety; but, taking up this question of Life Peerage, they make this observation within the last week or ten days, as to the manner in which the judicial business of the House is conducted: “That an accession of strength is required in this quarter no one, we should have thought, would doubt; and we cannot assent to Lord Lyndhurst's assertion that the House of Lords as a Court of Appeal is sufficiently strong. It is unsatisfactory to the counsel who practise before it; to the suitors whom they represent; and to the public at large. The administration of justice should not only be unsuspected, but should be above suspicion. It is a serious evil to have the highest tribunal of appellate jurisdiction in this country—the last resort of wearied and almost exhausted suitors—exposed to obloquy and contempt, not only from the lay portion of the community, but even from lawyers, with the Solicitor General at their head.” I rejoice, therefore, that this Committee has
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My Lords, I have practised at the bar of this House probably to as great an extent as almost any other man has done, and I have seen the administration of justice, and have been affected, as counsel, by the administration of justice in this House, for a very long period before I left the Bar. I will take upon myself to assert that, although more learned men may have assisted your Lordships in coming to a decision, there never has been a period at any time in which the causes have been heard with more attention by those who have assisted your Lordships with their advice— there never has been a period in which more attention has been given to the hearing of the cases; in which more attention has been bestowed upon the decision of the cases; or in which more elaborate reasons have been given for those decisions than at the present period. Let us, therefore, know, let the House know, and let the country know what are the grounds of the charges which are thus brought, not simply against the jurisdiction itself, but evidently against the exercise of the jurisdiction. The words which I have read to your Lordships, if they bear any meaning, rather point to the latter than to the former. What is the meaning of saying that the administration of justice should be unsuspected? The administration of justice in this House is unsuspected. There is not a man in England who suspects the administration of justice in this House. There are persons who may differ from the opinions expressed by the noble and learned Lords who assist you. They may be unequal to the task; there may be more learned persons in existence; but that would not justify any such observations as I have called to your Lordships' attention. It appears to me, therefore, a matter of the highest
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I have a right to say, speaking for myself only, that in the discussion of the question of Life Peerages I was wholly unactuated by any desire to resist all alteration of the jurisdiction of the House as a Court of Appeal. It has been said that those who have opposed Life Peerages have evinced a determination to maintain the jurisdiction of this House as it now stands, altogether untouched. Now, I have, for the last twenty-five years, taken every possible opportunity in the other House of Parliament, and wherever I have had the power of calling the attention of the Government and the public from time to time to the, nature of the jurisdiction of this House, and requiring, as far as I could, that there should be an alteration in the manner in which it should be exercised, never for a moment thinking that the jurisdiction should be taken from the House; all I desired was that it should be improved, that is, that the exercise of it should be improved; but I am sure if your Lordships desire to strike from under you one of the main pillars upon which the House rests, you will denude yourselves of the appellate jurisdiction. Depend upon it, the greater portion of that weight and authority with the public would cease, and you would not be the House you now are, but your hereditary quality would be affected and diminished by your being deprived of that which, while it is an ornament to the House, can never be so unless it is useful to the country.
My Lords, in the year 1830, after I became Solicitor General, I stated to the other House of Parliament what the measures were which that Government to which I had been attached intended to bring forward I particularly touched upon the Court of Appeal, and I advised the creation of what I called an Equity
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The Lord Chief Justice refers to a case in which lately he was kind enough to come and assist at the hearing of an appeal. It was an appeal from a decision of my own in the Court of Chancery, and which involved many important questions of law and equity, a very fair subject for appeal. My noble and learned friend on the woolsack thought we had better have a
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a) Lord Hardwicke when Chancellor was the sole Law Lord in the House. He could have called in the Judges; but he rarely, if ever, did. How often did Lord Eldon summon them? Mr. Leahy, waiting about 1827, says:—“I believe that on an average the Judges do not sit in the House of Lords two days in a whole Session of Parliament.” Lord St. Leonards himself, when Chancellor, sat a good deal alone; and on Scotch causes too. See his Lordship's own remarks, infrà, p. 647.
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There has been great misunderstanding, as it appears to me, in regard to what has taken place in this House upon the hearing of appeals. I believe there has been considerable dissatisfaction expressed, that where two noble and learned Lords have been sitting together and have differed, the decree below has been affirmed upon the opinion of one only, and it is believed, I rather think, that that has gone to a considerable extent. There never was a much greater mistake. During the three sessions in which I have sat as a Law Lord along with my noble and learned friend on the woolsack, we have heard together, I think, up to the beginning of this session, 81 cases; in 71 of those cases the Law Lords were agreed, and they were, therefore, either affirmed or reversed, according to the unanimous opinion of the three who heard the case, because my noble and learned friend above me scarcely ever misses an attendance, unless he happens to be
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Now, let us see what the effect of that is, as giving rise to any complaint on the part of the suitors. One case was the great Bridgewater case, and therefore we may put that upon one side. My noble and learned friend was opposed to all the four Law Lords, including the late Lord Truro, but that throws no reflection upon my noble and learned friend's opinion at all. No one ever thought so or said so, because he had the great authority of the Judges agreeing with his opinion. But the four other Law Lords, according to the best opinion they could form, agreed in an opinion contrary to that of the Judges, and therefore against my noble and learned friend; but, as I have said, without the slightest idea on the part of any man, that that derogated from the respect and deference which is due to my noble and learned friend. Putting that case upon one side, there would be nine cases in which we have differed. In one of those cases, my noble and learned friend above me agreed with me, and the consequence was, I think, that the case was affirmed upon the opinion of two against my noble and learned friend. There could be no objection to that, of course, because we sit here for the express purpose of giving our opinions. There were four other cases in which I unfortunately differed, both from my noble and learned friend on the woolsack, and my noble and learned friend near me. Those four cases were decided according to the opinions of the majority. There was a majority against me, and my opinion was overruled There was no harm accruing to the suitors, therefore
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Then there are four cases of disagreement. My noble and learned friend on the woolsack and myself sat alone upon four cases, in which we differed; the result of which was, that my noble and learned friend affirmed two—two were affirmed according to his opinion, and two were affirmed according to my opinion. Now there is nothing singular in that. It is impossible that two men should sit together who are honestly discharging their duties, and competent to consider the very complicated cases of fact, and the difficult cases of law, which come before your Lordships' House, without ocasionally differing. The opinion of each must be, of course, supported, if they desire to stand well before the profession to which they have the honour to belong, by elaborate judgments, showing, whether they are right or wrong, why they hold a certain opinion. It is not simply coming and saying, I disagree to this or to that, but after communication with each other, each retains his opinion, and gives elaborate reasons for it. Now, my Lords, it has been supposed that there is no decision if two Law Lords sitting together should differ. That is not so. There is an absolute decision; for first of all, the question is put, that the decision below shall be reversed. Then it is put that it shall be affirmed, and in point of fact, the decree below is affirmed, and that
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When we look at the nature of this jurisdiction, I would impress upon your Lordships that the whole evil of the differences of opinion which have arisen between my noble and learned friend and myself, without detracting from his authority, if it be so considered, as Lord Chancellor, has amounted simply to this, that two cases have been affirmed upon my judgment, which, if heard by my noble and learned friend by himself, he would have reversed. Whether they were rightly affirmed by me or not, it would be great presumption in me to say, but there was nothing singular in that; and there has never been any
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My Lords, when fault is found with the jurisdiction of two Judges, let us see what has been done, and what the opinions have been or are at this moment of Her Majesty's Government, and what have been the views of preceding Whig Governments. The Court of Appeal in Chancery was established by the Whig Government. And how did they constitute that Court of Appeal from the decisions of the Vice-Chancellors and the Master of the Rolls? Why, they constituted it of three. It might be the Lord Chancellor and the two Lords Justices, but the Bill expressly authorizes the Lord Chancellor to sit alone, and it authorizes the Lord Justices to sit alone. And what is the result? That in 99 cases in 100, the Lords Justices do sit alone; but they are constituted by Act of Parliament. But in creating that jurisdiction, the Government of the day created it so as to give the power to two Judges only. At present there are two (and two more learned persons and more admirable Judges could not occupy that bench), and if, as it frequently happens, they disagree, the one being for the affirmance, and the other intimating that he does not quite agree or does not take the same view, it is not necessary for him to say anything upon the subject. Now, the Act of Parliament itself, to which I have referred, giving the jurisdiction to the two, expressly states that ii they differ, the affirmance shall be on the vote of the one who is the qualified leader, and it is right that it should be so. As the decision of the Court below was come to by a court of competent jurisdiction, in the Court which is created in order to dispense justice in the case of an appeal from the other Court, it must be shown that the decision was wrong. Now, if the
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Now, my Lords, if that Court were to be so constituted, it would consist of two persons, the Lord Chancellor and the new Judge. That new Judge would be appointed during good behaviour, and so far right, in the first place; but then the authority of the Lord Chancellor would be detracted from in a most fearful manner. I never heard that there was any objection raised to the Lord Chancellor of Ireland sitting to hear appeals. I feel perfectly satisfied that no such objection was made whilst I was in Ireland and I have not the slightest reason to believe that any objection has been made to the present Lord Chancellor. But to put another Judge alongside of him, would be to create the very embarrassment under which we have been labouring; it would introduce that very difficulty that I referred to, to have another Judge of inferior power placed alongside of him; for if that Judge should be for affirming the decision of the Court below, he might sit alongside of the Lord Chancellor and overrule him. Your Lordships see, therefore, that what seems to have struck the public mind in regard to this power being confided to and exercised by two persons, does not seem to have pressed very heavily upon either former Whig Governments or the present Government; for there is an Act of Parliament, providing an exactly similar tribunal to that of your Lordships' House, and there is a Bill before the other House for the express purpose of unnecessarily, as it appears to me, creating the very counterpart of that which is now objected to.
My Lords, my attention has been directed to the
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Lord Brougham's Speech.
My opinion upon this question, an opinion enterained for many years, has received very great confirmation by what has passed on the present occasion; and I hardly think I can state the difficulties in as strong terms as the short controversy that has taken place to-night entitles me to state them; nor do I think that I shall be considered in the least degree to differ from my noble and learned friends, in the views which they have taken, if I wholly abstain from now entering into it. If I purposely abstain from going into any one of the topics which have been so ably handled by my noble and learned friends who have preceded me, it is not at all from underrating the great value of their suggestions, and it is much less from underrating the paramount
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My Lords, it is from no short consideration of this question that I come to the conclusion, either of its importance or of its difficulties. I have been for upwards of twenty-five years a member of this Court of Appeal, sitting as a Judge of Appeals, and I was at the bar the same number of years, and consequently I may well say, as my noble and learned friend who spoke last said, that my attention is not now for the first time directed to this question. I hope and trust that no sensitive feeling will at all relax the disposition of your Lordships, or the determination, I may say, to enter fully and speedily into the inquiry by all the means by which that investigation may be most successfully and fruitfully conducted, by the examination of documents, of decisions, of former proceedings of a legislative nature, and of living witnesses of skill and experience in Courts of Appeal, witnesses of all descriptions, both at the bar and on the bench, and if you will, witnesses from the other parts of the United Kingdom, from Scotland as well as from Ireland. I have no doubt whatever that your Lordships will strenuously, and I trust successfully, pursue this inquiry, and that this inquiry may lead to a profitable result is my prayer, and my hope, I may add, rather than my expectation; but I trust that the Committee will be able to suggest some considerable improvement at least in the Court of Appeal; I will not say in the constitution of the Court of Appeal, but in the working of it. I confidently expect that that will be the case. I have more doubts as to the
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My Lords, my noble and learned friend the Lord Chief Justice, was a little mistaken in the account which he gave of my Bill of 1834 (a). It was not for transferring all the jurisdiction of this House to the Judicial Committee of the Privy Council. It was a mere optional power, a power given to this House to use the Judicial Committee as ancillary to its own judicial functions, to give a power to the House of Lords to send cases to that tribunal which had answered most perfectly during the time that it had been in existence, and which has only been confirmed by longer experience; to give this House the power of using that jurisdiction as a beneficial and convenient instrument for the purpose of assisting it in its own decisions, but not by any means to transfer to that Court that which ought to be confined for ever to this Court. And I will fairly state to your Lordships that my. principal reason for not proceeding further with that Bill, was that I was afraid that even that optional power given might tend in the end to trench upon the judicial functions of the House.
My Lords, I entirely agree with my noble friend the noble Earl who so ably and clearly introduced this question, in holding, as I believe all your Lordships hold, that if we were to be reduced to the dilemma, and put, as it were, to our election, either to abandon our judicial functions, or to see the administration of justice in this High Court of Error and of Appeal made evil for its purposes, hurtful to the
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a)
See Lord Brougham's Bill of 1834, to amend the Appellate Jurisdiction of House, Macq. H. of L., Appx. No. 12.
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Lord Chancellor's Speech.
My Lords, I really had not intended to say one word, for I feel that if there be any defect in the course that this debate has taken, it is, perhaps, that some of your Lordships have apparently rather committed yourselves to opinions that will have to be considered in Committee. I was anxious to express no opinion whatsoever which should preclude me from entering in a perfectly unbiassed manner upon the consideration of the question in Committee; but I have thought that it was due to my own position, and due to my noble and learned friends who are in the habit of sitting with me, to make one or two observations upon what has been said to be the lost character in the estimation of the country of the judicial proceedings of this House. I do not believe that to be the fact. See what the complaints made are. It is said, that one noble Lord hears a case opened, another
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The notion that noble Lords come in and hear a portion of the discussion, and then give their judgment without having heard the whole, must be entertained by persons utterly unacquainted with what is going- on here. Nothing of the sortever takes place. I do not say that in the course of a long argument, a noble and learned Lord does not go away for a few minutes; but if he does, he does not lose the thread of the argument, and to treat that as any peculiarity of this House is to betray a total ignorance of what goes on in all other Courts. It is just the same as happens in the Court of Queen's Bench; and I think in the Judicial Committee of the Privy Council I have seen the same thing happen. One member may walk out for a minute, and when he comes back again he is immediately put in full possession of what has passed during his absence.
I quite concur with all that has been said by both my noble and learned friends who last addressed the House, for I am afraid that we are instituting an inquiry into a problem which it will be extremely difficult to solve. We shall not fail to do the best we can. and as far as I am concerned, and I believe I may say the same of every one of your Lordships who may happen to be members of the Committee, we will look at the question dispassionately, and with the sole object of coming to that conclusion which will be best calculated to promote the public interests.
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Nomination of the Committee on the Appellate Jurisdiction.
The Earl of Derby at the close of the debate said, that in the list of the Committee which he proposed the name of the Lord Chief Justice would not appear at present, because the noble and learned Lord had announced that he was about to go on circuit. If, however, on his return the inquiry should not be concluded, their Lordships would, no doubt, be desirous to have the assistance of the noble and learned Lord during the remainder of its sittings.
Ld. Chancellor.
Ld. President.
D. Somerset.
M. Lansdowne.
E. Derby.
E. Stanhope.
E. Carnarvon.
E. Grey.
E. Ellenborough.
V. Gordon (Earl of Aberdeen).
L. Sundridge.
L. Redesdale.
L. Lyndhurst.
L. Brougham and Vaux.
L. Abinger.
L. Glenelg (a).
L. Elgin.
L. St. Leonards.
This Committee sat for many days during the Session 1856. Their proceedings were watched with great attention. They examined very eminent witnesses—some of them forensic—some judicial.
The following Extracts show the principal points of inquiry, so far as these relate to the general constitution and permanent character of the House as a Court of ultimate appeal. Matters having only a temporary, local, or personal interest, are omitted; though they excited, at the time, a lively curiosity.
_________________ Footnote _________________
( a) Lord Glenelg declined acting.
EXTRACTS FROM THE OPINIÓNS DELIVERED BEFORE THE COMMITTEE.
Sir Fitz-Roy Kelly:
I think there are very great advantages in a single Judge; but it must be in a Court of original jurisdiction. If you could be sure of always having one of the greatest men that any age can produce, one Judge might be fit to preside in a Court of final appeal; but that cannot be.
Q. Did not a single Judge form a satisfactory tribunal for 150 years?
A. I do not think it was so, even in the time of Lord Eldon. No such Judge in general can exist.
Q. Supposing a Judge to sit without the peculiar habits which Lord Eldon had of delay, has not such a Court, consisting of one, an advantage in respect of unity in decision and despatch of business?
A. It has; but I do not think that those advantages would counterbalance the disadvantages of the want of confidence on the part of the public in the decisions of any Supreme Court of Appeal, consisting of a single judge.
Q. Supposing the tribunal to consist of one person, and he a sound lawyer and a well-educated Judge, with all the advantage of previous discussions, decisions, and printed judgments, in which all the cases are cited; do not you think that it is very probable that the public would be more satisfied with his decisions than with a diversity of opinions, even though the Court should come to the same conclusion?
A. I think not. But if the appeal were from himself what would be done? because that must be considered if there were only one Judge.
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Q. Do not you think a judicial mind is very capable of revising even its own decisions in the case of such a man as the Lord Chancellor usually is?
A. I do; but the public would never be satisfied with it; it may be so sometimes, but it is not so always, and justice ought always to be well administered. In my opinion, the tribunal should consist of the five best men in England, to decide the particular cause before the House, and those five, or the majority of them, should decide. Judging from experience, five is the number which would constitute the most effective tribunal which can exist in this country.
Q. Would you make it absolutely essential that there should be five?
A. Five should be the minimum.
Sir Richard Bethell:
I think it would be perfectly competent in this country, with the great sources which you have from whence to draw your supply, always to have in the House of Lords five men of the greatest attainments, the greatest intellect, and the greatest experience in the law. I should prefer five to any other number.
Q. Is it not the fact that judgments in former times, of the highest authority, were practically given by a single Judge?
A. If there be a single Judge who, by the common consent of mankind, embodies the highest qualities of a Judge, then the decisions of that individual, being uniform, certain, definite, and clear, would be of the highest possible value; precisely as if you had an arbitrary government, with absolute authority vested in a man of the highest possible moral and intellectual perfections, one would desire to live under that government rather than any other. But it is so difficult to obtain such a man, and still more a succession of such men, that it is impossible, particularly in the case of a tribunal which has causes brought before it from all quarters of the globe, involving all possible questions, to suppose that one individual will at all times be equal to the satisfactory determination of such a vast and multitudinous assemblage of subjects; therefore it is that we desire a greater number of minds than one, in order that some may supply what is wanting in the others.
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The Right Hon. Joseph Napier:
I think an Appellate Tribunal of five would make as excellent a tribunal as could be.
Roundell Palmer, Esq.:
I think, taking into account the probability, and almost the certainty that there would be other noble Lords capable of assisting, three in addition to the Lord Chancellor would be sufficient; but at the same time I am bound to say I am sensible to the force of the reasons of those who would hardly be satisfied with three; I mean the object of having those who are conversant with more than one branch of the laws administered in the House. The Lord Chancellor, we know, from experience, may be either a common lawyer, or an equity lawyer; it would be necessary to have at least two equity lawyers, I think, whom you could always reckon on to assist the House; on the other hand, especially if the attendance of the Judges is to be less frequent than heretofore, it might be important to have two common lawyers.
The Dean of Faculty:
I think the best number for such a Court, after the best consideration I have been able to give the subject, is five.
Richard Malins, Esq.:
I object to every Appeal Court consisting of less than three Judges.
John Rolt, Esq.:
Q. Would you prefer a Court of three to a Court of five?
A. I should.
Sir Richard Bethell:
I object very much to the constitution of the House of Lords, because the law Lords may be called gratuitous members of the tribunal; they are not bound to attend; they frequently do attend, but sometimes do not attend.
Sir Fitz-Roy Kelly:
Where it depends, as it unfortunately does here, upon the mere volition of the individual Lords, whether they will
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Roundell Palmer, Esq.:
I think, like those who have preceded me upon the main point, that it would be more satisfactory, in every way, if there were a more permanent and constant judicial element in your Lordships' House; if the attendance were not accidental and voluntary to the extent to which it is; and also if the number of law Lords were not so liable to be reduced by accident, as it is.
John Rolt, Esq.:
The only matter which has occurred to me to require regulation, if it were practicable, is, that there should be in some way or another a duty imposed upon the law Lords, who have during the whole of my practice administered your Lordships' jurisdiction, to attend, so as to ensure that attendance as a duty, and that it should not be a mere voluntary attendance, which they would not consider themselves under any special obligation to fulfil.
Sir Richard Bethell:
I think it most desirable on every ground that the House of Lords should be open as a final Court of Appeal during the regular portion of the year devoted to judicial business; and I speak of that for another reason. Repeatedly, by decisions in the Court of Chancery, things have been fixed as law, which never would have remained law if there had been a possibility of coming promptly to the House of Lords. That I may make that intelligible to your Lordship, who has been good enough to put the question, I may say that a most important point of law may come on to be discussed upon a motion for an injunction in the month of August: that injunction is granted. There is no possibility of having that question determined by the Court
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Roundell Palmer, Esq.:
I assume that it would be in your Lordships' power, if you thought fit, or it might be placed in your power by enactment, to appoint a Judicial Committee to act for the House during the prorogation whenever it might be thought expedient. Certainly, a delay for three months out of the whole time while the Court of Chancery is sitting is a delay tending to create other delays, and upon the whole, in my opinion, as well as that of others, it must tend to the production of substantial inconvenience and injury to suitors. I agree with what has been said upon the subject of injunctions.
The Right Hon. Sir John Romilly, M.R.:
Q. You assume, as an indisputable fact, that the new tribunal, whatever it be, should sit during the whole legal year; you think that is essential?
A. I think that is essential.
The Dean of Faculty:
Q. I meant to ask more particularly whether you would think it desirable to protract the legal Session beyond the legislative Session?
A. Certainly.
Sir Richard Bethell:
Q. I understood you to express an opinion, that it was desirable that the House of Lords, as the Court of Appellate Jurisdiction, should absorb the functions at present exercised by the Judicial Committee of the Privy Council?
A. I think so. It is, in theory, a great objection that there should be two co-ordinate final Courts of Appeal. With respect to the Judicial Committee of the Privy Council, there is this great inconvenience, that no one can tell now
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Q. With regard to the constitution of the Judicial Committee of the Privy Council, so far as it partakes of those elements of uncertainty to which you have just referred, it is open to the same objections as the House of Lords?
A. Very much so. A suitor comes to your brass gates, and before they open, he knows not by whom his cause will be heard, whether by one Lord, or by two, or by three.
Q. The Judicial Committee of the Privy Council, the Committee understand you to say, is open to the same objection?
A. Yes; from the uncertainty of knowing who will be there, or when it will sit.
The Right Hon. Sir John Romilly:
It is to be observed that if this Judicial Tribunal were properly constituted, all the appeals ought to come to it, and you ought to have no intermediate appeal.
Q. And you would sweep away the Court of the Lords Justices, and the Judicial Committee of the Privy Council?
A. Yes.
Q. And you would make the Appellate Tribunal of the House of Lords one great Court of Appeal, sitting through the year?
A. Yes.
Richard Malins, Esq.:
I am inclined to think the whole judicial business of the Privy Council might be transferred to the House of Lords.
John Rolt, Esq.:
Q. Should you desire to to see the jurisdiction of the
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A. I should be very glad to see it transferred to the House of Lords.
Q. Would there be any objection on the part of any of the dependencies of the British Empire to have all causes decided by a House of the Legislature?
A. I should think none.
Sir Fitz-Roy Kelly:
It is of the essence of a perfect tribunal which has jurisdiction over causes of a constantly varying character, and involving different systems of law, that there should be the power of shifting and changing the constituent members of the Court. In cases of common law, they generally summon one or two Chief Justices, or ex-Judges, being Privy Councillors; in cases of equity, they summon the Lords Justices or the Vice-Chancellors; in cases of Indian law, they have a very able and eminent man, Sir Edward Ryan, who is familiar with Indian customs and Indian law; and again, upon appeals from the Ecclesiastical Courts, they summon the Judge of the Prerogative Court, or of the Admiralty Court; so that the Tribunal always consists of the best men in England to determine the particular cause which is to be heard and decided.
The Lord Advocate:
The remedy is to constitute a Court of Appeal, that, by daily and constant practice in the different systems of law which prevail in Her Majesty's dominions, shall become so welded and moulded together, that each member of it shall communicate to the others the general principles of his system; while, at the same time, each is there to prevent any material error in regard to details of practice, or to the more special questions which may arise.
The Right Hon. Sir John Romilly:
I consider that the lay element in an Appellate Tribunal is a beneficial one, as it has a tendency to obviate what I
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Q. Would you submit the lay Lords to any previous examination before they were appointed on the Appellate Tribunal?
A. Certainly not.
The Vice-Chancellor Sir John Stuart:
Any change in the constitution of the jurisdiction which would prevent the interference of the lay Lords would be a great blow to the dignity of the Peerage, and to the interests of the public.
Q. Do not you think that if there were the slightest suspicion of any partiality or impropriety on the part of any law Lord, in the transaction of the judicial business of the House of Lords, the next day you would see every Peer in the House present in his place?
A. I have not a doubt of it.
Right Hon. The Lord Justice General of Scotland:
I think that the Court ought to contain within itself the skill and the strength to deal with the judgments of all the Courts which it reviews.
The Lord Advocate:
I suggest that one of the members of the Court of Appeal should be a Scotch lawyer of eminence; and it seems to me, if he sat, not only in Scotch appeals, but in English appeals, and in appeals from the Colonies, he might be of the greatest service.
Q. When you say a Scotch lawyer of eminence, do you mean one who had filled a judicial station in Scotland?
A. It might be right to select persons from that position, but not necessarily so.
Q. You do not consider that the decisions of the Court would be supposed to be decisions of the Scotch Judge alone?
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A. No; that objection has been made; but I cannot help thinking that if the Scotch Judge sat upon English and Colonial cases, and formed part of the great appellate system, that would never come to pass: he would have a respect for the opinion of his brother Lords; and the Scotch character of the man would be merged in the catholic character of the Tribunal.
Roundell Palmer, Esq.:
I think there would be a great advantage in having a Judge acquainted with the laws of Scotland; upon that point I would take the liberty of observing, that it would be well for your Lordships to consider whether that state of things which has existed now for many years in the House as to the laws of Scotland, is one upon the permanency of which you can reckon.
My impression is, that if the Judge were entirely withdrawn from the actual administration of the law in Scotland, and selected on account of his generally acknowledged eminence in Scotland, he would contribute very useful knowledge upon points which ought not to be drawn into dispute in the House, and be a great security to the House against surprises upon Scotch law. My observation would lead me to believe that those members of the Judicial Committee who do not sit there as representing a particular branch of law, always exercise an independent judgment, and contribute an independent judgment to the ultimate decision. In Indian cases, in which I have had considerable practice, Sir Edward Ryan attends there with great advantage to the public, and contributes his special knowledge of the administration of Indian law: but I should say that the more leading part in the hearing of those cases has often appeared to be taken by Mr. Pemberton Leigh, or by Lord Justice Turner, or by Lord Justice Knight Bruce, and it would be contrary to all the conclusions I should draw, for me to suppose that in case of a difference Sir Edward Ryan's opinion would necessarily prevail.
The Dean of Faculty:
In the view of a re-constitution (if I may say so) of the Court of Appeal, the remedy which occurs to me, and which is most generally approved of, is, that provision should be made that one of the Judges should be a Scotch lawyer.
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The Right Hon. Sir John Romilly:
I asked Lord Corehouse whether it would not have been better if there had been a Scotch lawyer in the Court of Appeal: he said, no; he was of opinion that it would have been worse. I remember distinctly his stating to me his view, that the effect produced by the Appellate Jurisdiction of the House of Lords had been most beneficial with respect to the administration of the law in Scotland. And I remember Mr. Adam, the late Accountant-general (whom several of your Lordships will also remember), expressing a similar opinion to that, when I mentioned to him the conversation I had had with Lord Corehouse.
The Right Hon. Lord Justice Clerk of Scotland:
I always believed the suitors to be exceedingly unfavourable to any such notion as that of a Scotch Judge being placed upon the Court of Appeal. The present feeling, as far as my knowledge goes of the Faculty of Advocates, is quite new. I never heard the subject broached, during the eleven years I was Dean of Faculty; and I can speak from my positive knowledge that Lord Corehouse, Lord Moncrieff, Lord Murray, and others, who were seniors to me, thought that it was quite an essential feature of the Court of Appeal that there should be no Scotch lawyers, but that it should be composed entirely of English Judges. There are a great many benefits I think resulting from that.
James Anderson, Esq.:
My opinion is, that, practically, the introduction of a Scotch Judge is not desirable.
R. Malcolm Kerr, Esq. (Scotch Advocate and English Barrister):
The people of Scotland do not, I think, desire to see in the Court of Appeal, either a local Scotch Judge, or even a Scotch Judge who has ceased to exercise judicial functions in Scotland.
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Sir Fitz-Roy Kelly:
With respect to the summoning of the Judges, I would not presume to advise the House of Lords to part with the privilege of summoning the Judges. I would discontinue the practice of summoning them in most of the cases; that is, I would have a Tribunal of five, consisting of law Lords who generally are familiar and well acquainted in every respect with Common Law, and have had long practice in the Common Law, and who, with such others of the Common Law Judges as might be summoned, being Privy Councillors, would constitute the Tribunal of five, which would be amply sufficient for all ordinary cases. But, undoubtedly, there may be cases of such extraordinary difficulty, or such extreme importance, or cases in which, from something which may have taken place in the progress of the cause through the inferior Courts, it may be necessary to have the opinions of all the Judges of England. I gave an instance yesterday,—the case of the Queen v. Millis. I do not say if a case were to arise like the case of O'Connell, if I had the honour of a seat in the House of Lords, I should not suggest the summoning of all the Judges of England, because the public attention would be directed to it, and surmises might be made, however unfounded, which would be prevented by the attendance of the whole of the Judges therefore, though, as a matter of general practice, I would cease to summon the Judges, I would retain the privilege of summoning them, and summon them upon particular occasions.
Q. Would you extend that power of summoning the Judges to the Judges in Equity?
A. Certainly; I can hardly admit that the privilege does not exist at present; at all events, it exists if they are Privy Councillors. It certainly would be exceedingly desirable that the House of Lords should have the power of summoning all, whatever may be their position or their rank, who can effectually assist the Tribunal which it is ultimately determined to create.
John Rolt, Esq.:
The other matter which would require regulation, in my humble judgment, relates to the mode of taking the opinions
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Roundell Palmer, Esq.:
Q. Would you have judgment delivered as the joint opinion of the Court, without reference to the opinion of the one who differed?
A. I think it would be desirable that it should be delivered as the opinion of the House, adopted by the House, and sanctioned by the House, without any reference to the opinion of the one who differed. Your Lordships will allow me to state my reason for that. In the Courts below, which are subject to appeal, it is of the greatest importance that the reasons which influence the minds of the different Judges should appear; and if they differ, it is of still more importance, in order that they may be considered and reviewed; but when you come to the Court of last resort, it is of more importance, I apprehend, that the authority of the judgments of that Court should be maintained in the eyes of the suitors and the public, than that the precise reasons which have actuated the Judges should appear. It is useful that those reasons which the House has adopted as its reasons should be known; but I do not think it can be necessary that it should be known that an individual, however learned and eminent, has dissented from those reasons.
The Right Hon. Sir John Romilly:
My own opinion is, that the dignity of the Appellate Tribunal is best upheld by there being no difference of opinion apparent in it; and that it would be better that they should discuss the matter among themselves, and that the decision should be given as the decision of the whole body.
Sir Richard Bethell:
Q. The judgment should be that of the majority, without the mention of any difference of opinion?
A. Yes.
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Right Hon. The Lord St. Leonards:
I would not sit upon any Appeal or other Court if I were not at liberty to express the opinion which I entertained; and I am clearly of opinion that the law never can flourish as a science, unless the Judge is permitted to do so.
The Dean of Faculty:
Q. Supposing the Judges of the Court of Appeal are divided, ought the dissentient Judges to express an opinion?
A. I think so; I think it would be most desirable that in that case the dissent should be expressed; because if it were not, the suitors would suspect that there was a dissent in every case; they would always suspect the existence of a division of opinion.
Right Hon. The Lord Justice General of Scotland:
Q. Should you think it desirable that the reasons for either reversal or affirmance of the decree of the Court below should be assigned, and if assigned, should each member assign his reasons separately?
A. I think that is a question upon which there may be room for difference of opinion: my own opinion is, that there ought to be no fixed rule upon that subject.
John Rolt, Esq.:
Q. Do you attach much importance to the judgment in an appeal being given as the judgment of the Court, without there being an expression of any difference of opinion on the part of those who may dissent from it?
A. I have not considered that question; I should prefer hearing the opinions of all the members of the Court.
[In Grey v. Pearson the Vice-Chancellor Turner dismissed the plaintiff's bill. Lord Chancellor Cranworth reversed or varied this decision. When the appeal to the House of Lords was about to be opened (March 12, 1857), the Lord Chancellor observed that it was doubtful whether Lord St. Leonards would be present. The learned Counsel for the appellant (Mr. John Walker, Q.C.,) begged leave to request that the case might be put off until Lord St. Leonards could attend.
The cause was consequently adjourned. It was afterwards argued before the Lord Chancellor, Lord St.
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“The Lord Chancellor retained the opinion he expressed in the Court below
Lord St. Leonards delivered a long and elaborate judgment in which he entirely differed from the opinion of the Lord Chancellor, and relied upon the decision of Lord Hardwicke in Brownsword v. Edwards (a). In his opinion the appeal ought to be allowed.
Baron Wensleydale concurred with the Lord Chancellor in his opinion that the appeal ought to be dismissed.
Appeal dismissed accordingly.”
No one is here to blame. It is the system. The same thing might have happened if Lord Hardwicke, Lord Mansfield, and Lord Chancellor Thurlow could have come together to review a decree by the latter, reversing one of Sir Pepper Arden's.]
1. The House of Lords to exercise its Appellate Jurisdiction through the medium of a Judicial Committee composed of Peers.
2. The jurisdiction and functions of the Judicial Committee of the Privy Council to be vested in the Judicial Committee of the Lords, so that there may be (in the House of Lords) one single uniform Appellate Tribunal for the whole Empire.
3. This great Court of the House of Lords to be open during five days in every week throughout the year, except the usual vacations as observed by the Court of Chancery.
4. The Court, when sitting, always to be constituted of the Lord Chancellor, as President, and four other Members, i.e., of the Committee. Five to be the quorum.
5. Peers who have filled the office of Lord Chancellor to be ex officio Members of the Committee; and if any one of such Peers will engage regularly to attend the sittings of the Committee, he is to be a permanent Member, and entitled to a salary of £, in addition to his retiring pension.
6. Official Peerages to be conferred on such a number of eminent lawyers as may be necessary to make the Committee
_________________ Footnote _________________ (
a) 2 Ves. Sen. 243.
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7. The Committee to have power to summon all or any of the Judges of the Courts of Law and Equity, the Testamentary and Admiralty Courts in England, and Court of Session in Scotland, to sit as assessors of the Committee.
8. Each permanent Member of the Committee, not being the Lord Chancellor or an ex-Lord Chancellor, to receive a salary of 5,000 l. per annum, from which any retiring pension is to be deducted.
9. Every official Peer to have the full privileges of a Peer of Parliament during his office (or life).
10. Any petition or application to the Crown which, according to present practice, may be referred by Her Majesty to the Judicial Committee of the Privy Council, may be referred by Her, in like manner, to the Judicial Committee of the House of Lords.
11. The practice and rules of procedure of the House of Lords as an Appellate Tribunal to be revised and simplified; and all applications now made to the Standing Committee on Appeals to be heard and determined by a Committee of three Members of the Judicial Committee, who shall meet for that purpose once in every week during the sittings of the Committee.
REPORT OF THE LORDS' COMMITTEE,
20th May 1856.
Reports of the Lords Committee, 20th May 1856.
The Committee have met, and, in pursuing the important inquiry intrusted to them, have examined several of the leading Counsel employed in the business of appeal at your Lordships' bar, and subsequently the Lord Justice Clerk, the Lord Justice General of Scotland, the Master of the Rolls, Vice-Chancellor Stuart, and Lord St. Leonards.
Among these witnesses there appears to be a very general agreement as to the expediency of retaining the appellate jurisdiction of the House, and in this view the Committee entirely concur.
Although some of the witnesses have stated that the working of the present tribunal is perfectly efficient and satisfactory, and testimony has been generally borne to the wisdom and impartiality with which the law has been administered by it, yet there is a great preponderance of opinion in favour of some change in the manner in which the appellate business of the House of Lords is at present conducted.
The principal objections raised by the witnesses against the present constitution and practice of this ultimate Court of Appeal are as follow:—
1. That none of the Law Lords, except the Lord Chancellor, being bound to attend, there is an uncertainty as to the number of those Peers who may assist at the hearing of any case; and that the attendance of Peers who, from want of professional knowledge and experience, decline to interfere in the proceedings, takes away from the
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2. That delay, sometimes inconvenient to the suitors, and prejudicial to the regular administration of justice, is caused by the House not being able to sit during the whole of that portion of the year during which the inferior Courts are open.
3. That the administration of Scotch law has been at times unsatisfactory from the want of familiarity with the Scotch law, consequent upon the Law Lords being exclusively English judges.
4. That there is an unnecessary expense attending some of the forms of proceeding.
5. That the mode of delivering judgment, and the absence of official dress, deprive the House of the solemnity which attends ordinary judicial proceedings.
The Committee have carefully considered these objections raised by the witnesses, and also the various suggestions that have been made with a view of meeting them; and they have to submit the following as the conclusions to which they have come:—
1. It appears from the evidence, that for the last ten or fifteen years the appeals have been heard sometimes by as many as four Law Lords, sometimes by three or two; and instances have been adduced where appeals have been heard and decided in this House, with advantage to the law, and satisfaction to the public, by the Lord Chancellor or one Law Lord alone. The Committee are, however, of opinion that, considering the importance of the causes brought to this ultimate Court of Appeal, the House should, as a general rule, be able to reckon on the attendance of not less than three Law Lords to assist in the hearing of all appeals; but in making this recommendation, the Committee by no means wish to discourage the attendance of other Members of the House.
Although during certain periods the number of Law Lords
_________________ Footnote _________________ (
a) Their attendance is not only necessary to make a House, but to make a Court and a Judgment. They are as indispensable as the Chancellor, and yet they have neither “professional knowledge nor experience.” How can it be correctly said that “they decline to interfere in the proceedings,” when they vote in every decision;—and where is the “misconception on the part of the public?”
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As the Lords holding the proposed offices would be intrusted with judicial duties of the highest importance, and as the Committee believe experience to afford the only sure test of the fitness of even eminent lawyers for such duties, they would further recommend, that persons who have held some high judicial office in the United Kingdom for not less than five years shall alone be eligible for these appointments (a).
They recommend that the office of a paid Deputy Speaker of the House shall be held by the same tenure as the office of a Judge, and that every such person shall receive out of the Consolidated Fund a yearly salary of 6,000 l., or such yearly sum as, with any pension to which he may be entitled for past services, will make up a yearly income of 6,000 l. so long as he shall hold the said office.
2. With respect to the delay which now occurs in hearing
_________________ Footnote _________________ (
a) This recommendation would often exclude the most eminent men. Lord Somers, Lord Macclesfield, Lord Hardwicke, Lord Mansfield, Lord Thurlow, Lord Cottenham, and many others, (to say nothing of the living ornaments of the profession,) came at once from the bar to the highest judicial offices.
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3. The Committee have paid great attention to the important evidence which they have heard on the subject of the Scotch appeals. Nearly all the witnesses who spoke to this part of the subject admit that very material advantages have been derived by Scotland in the course of the administration of the law by the House of Lords, and some of them are of opinion that it is still advisable to keep the appellate jurisdiction entirely distinct from the Scotch bench and bar; but, on the other hand, arguments were urged with considerable force against the anomaly of the final Court of Appeal from Scotland being so constituted as never to comprehend a Scotch Judge or any person necessarily acquainted with Scotch law. It appears that the majority of the bar and the Writers of the Signet in Edinburgh are in favour of one of the members of this Appellate Court being a Scotch lawyer. It is not proved that this is the opinion either of the mercantile classes or of the community at large in Scotland. The Committee are of opinion that no fixed and invariable rule should be adopted on this subject.
4. The Committee recommend to the attention of the House the complaints which they have quoted above as to the unnecessary expense of some of the proceedings of the House, particularly in respect to the printing of the cases. They are of opinion that this, together with other suggestions for the prevention of delay, are questions which will be best dealt with by the Lord Chancellor and the Lords who assist him in hearing appeals.
5. The Committee have heard much conflicting evidence as to the best mode of delivering judgments. It is argued, on the one hand, that the great principles of law are best elucidated by separate judgments when the Judges of the Court of Appeal differ in opinion, and that the separate declaration of opinion is satisfactory to the suitors, as proving that great attention has been paid to the cause. On the other, hand it is urged that such divisions diminish the
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The attention of the Committee has been drawn to the difficulty which may, in some cases, be felt hereafter, of appointing the most fit persons to judicial offices connected with the House of Lords, if it cannot be done without conferring on them hereditary Peerages; and it appears to the Committee advisable that any person appointed to such an office should be enabled, by authority of Parliament, to sit and vote in the House and enjoy all the rights and privileges of a Peer of Parliament, under a patent conferring a Peerage for Life only, if the Crown may have granted, or shall grant, the same to such person in preference to an hereditary Peerage; provided always, that not more than four persons shall have seats in the House at one time as Peers for Life.
The Committee recommend that in all respects, excepting those where change has been recommended in this Report, the functions of the Lord Chancellor and the rights and privileges of the whole body of the Peers shall remain unaffected.
And the Committee have directed the Minutes of Evidence taken before them to be laid before your Lordships (a).
_________________ Footnote _________________
( a) For this evidence at large, see the Report itself, which, on the 20th May 1856, the Lords ordered to be printed.
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The following is the Bill brought in pursuantly to the Report of the Committee.
A Bill intituled an Act to make better Provision for the Discharge of the Appellate Jurisdiction of the House of Lords.
Where as it is expedient to secure the regular attendance in the House of Lords during the hearing of appeals and writs of error of an increased number of Peers who have filled high judicial offices: Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
Two deputy Speakers of the House of Lords for judicial business to be appointed.
Tenure of office.
I. It shall be lawful for Her Majesty from time to time, by Letters Patent under the Great Seal of the United Kingdom, to appoint two persons, qualified as herein-after mentioned, to be Deputy Speakers
(a) of the House of Lords to assist in the judicial business of the said House, and
_________________ Footnote _________________ (
a) It seems doubtful whether the titles of “Speaker” and “Deputy Speaker” correctly apply to the high officers placed on the woolsack, not by the Lords, but by the Crown. To see how this is, it is necessary to look at the terms of the Commissions, which are preserved for several centuries. Thus, the Commission to Lord Mansfield was as follows:—“George, &c., know ye that we trusting, &c., do constitute, name, and authorize, from time to time, during our pleasure,
to use, occupy, and enjoy the room and place of a Lord Chancellor in our Upper House of Parliament, then and there to do and execute all such things as the Lord Chancellor should or might in that behalf do, if we were there personally present, using and supplying the same room; wherefore we will and command you to attend to the doing and execution of the premises, with effect,” &c. The Chancellor is supposed to be always present cither personally or by a Locum tenens, who gives place to the Chancellor the moment that high officer appears. The deputy appears rather to be Deputy Chancellor, not Deputy Speaker. There is no one in the Upper House corresponding with “Mr. Speaker” in the Lower. Contrary entries in the Journals, or in some modern Acts of Parliament, do not alter the Constitution. To make the deputies sit with their principal, exercising in his presence independent authority, has been said to involve something like a legal and a logical incongruity.
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Qualification for appointment of Deputy Speakers (Peers having held high judicial offices for five years).
II. No person shall be qualified to be appointed Deputy Speaker under this Act who shall not have held for a period of five years or upwards, or for periods amounting together to five years or upwards, any one or more of the Judicial Offices following, viz., Lord Chancellor of Ireland; Master of the Rolls in England; Master of the Rolls in Ireland; Lord Justice of the Court of Appeal in Chancery; Vice Chancellor (in England); Judge in any of the Superior Courts of Law at Westminster or in Dublin; Judge of the Court of Session in Scotland; Judge of the High Court of Admiralty of England; Judge of the Prerogative Court of the Archbishop of Canterbury.
Salaries of Deputy Speakers.
III. There shall be payable to each such Deputy Speaker the yearly salary of five thousand pounds, or such a yearly sum as, with any pension, retiring allowance, or compensation to which he may be entitled in respect of any office formerly held by him, will make up a yearly sum of five thousand pounds; and such salary or yearly sum shall be payable out of the Consolidated Fund of the United Kingdom by quarterly payments, free of all deductions, except income tax, on the fifth day of January, the fifth day of April, the fifth day of July, and the tenth day of October in every year, such salary or yearly sum nevertheless to grow due from day to day, and to be subject to apportionment at the commencement and termination thereof accordingly.
Duties of Deputy Speakers.
IV. It shall be the duty of the said Deputy Speakers unless prevented by illness or other sufficient cause, to attend the House of Lords during the hearing and decision of appeals and writs of error.
Retiring pensions may be granted to Deputy Speakers.
V. It shall be lawful for Her Majesty, by Letters Patent under the Great Seal of the United Kingdom, to grant to any person holding the office of a Deputy Speaker of the House of Lords under this Act an annuity for his life, not exceeding three thousand seven hundred and fifty pounds, to commence immediately after his resignation of such office, such annuity to be payable out of the Consolidated Fund of the United Kingdom, free from all deductions
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Peer for Life, if appointed Lord Chancellor or Deputy Speaker, may sit and vote in the House of Lords, &c.
VI. If Her Majesty by Her Letters Patent shall have granted or shall hereafter grant a Peerage for Life only to any person who shall be appointed Lord High Chancellor of Great Britain or of Deputy Speaker under this Act, such person, on receiving the appointment of Lord High Chancellor of Great Britain or Deputy Speaker under this Act, shall be entitled to sit and vote in the House of Lords, and to have and enjoy all the rights and privileges of a Peer of Parliament during his Life, if there are no more than three other persons having seats in the House of Lords as Peers for Life only at the time he shall be so created: Provided always, that not more than four persons shall have seats in the House of Lords at one time as Peers for Life only: Provided also, that if any person to whom a Peerage for Life only shall have been granted shall inherit or receive a Patent for an hereditary Peerage, he shall not be reckoned as one of the Peers having a seat in the House of Lords for his life only.
House of Lords may sit for disposing of appeals during a prorogation.
VII. For disposing of any appeals or writs of error which may remain undisposed of at the end of any session
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The right of the Crown to appoint other Deputy Speakers.
VIII. Nothing in this Act shall in anywise abridge or affect the right of Her Majesty to appoint Deputy Speakers of the House of Lords, but such Deputy Speakers may be appointed from time to time in the same manner and with the same rights and authorities as if this Act had not been passed, and shall, unless Her Majesty shall otherwise direct, have precedence of the Deputy Speakers appointed under this Act.
[N.B.—The preceding Bill passed the House of Lords and went to the Commons, who appointed a Committee to inquire into the whole question of the Appellate Jurisdiction. By this time the Session (1856) was far advanced, consequently nothing was done in the Committee, and the Bill having been read a second time, was permitted to expire. For the discussions in the House of Commons, see Hansard's Debates, 27th June, and 7th, 8th, and 10th July 1856.]
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CONSTITUTION AND WORKING OF THE COURT OF CASSATION, THE FRENCH COURT OF ULTIMATE APPEAL, IN MATTERS AS WELL OF CRIMINAL AS OF CIVIL JURISDICTION.
The Court of Cassation was instituted by the law of 1st December 1790.
It is now composed of a First President, of three Presidents, and of forty-five Judges ( Conseillers). It has attached to it a Procurator-General and six Advocates-General.
The Court of Cassation is divided into three Chambers:— The Chamber of Requests, the Civil Chamber, and the Criminal Chamber. Each Chamber has a President, fifteen Judges, and two Advocates-General. It is necessary that there be sitting in each Chamber at least eleven Judges, in order that it may pronounce decrees, and these are pronounced according to the majority of voices.—(Ordonnance of 15th January 1826.)
The first attribute of the Court of Cassation is to pronounce on all demands for cassation, against judgments given in final resort ( en dernier recours). It has also competence in conflicts of jurisdiction, and other matters (“Loi,” 1 Dec. 1790, Art. 2). Thus it annuls all proceedings in which there has been an error in form, and any judgment which contains an express contravention of the law. On no pretext and in no case can the Court take cognizance of the merits ( le fond) of causes; after having quashed ( cassé) the proceedings or the judgment, it sends the cause on the merits to the tribunal to whom it appertains. (Same “Loi,” Art. 3.)
The Chamber of Requests determines on the admission or rejection of the application for cassation ( pourvoi en
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The Civil Chamber, where the judgment ( jugement) or decree arrêt) submitted to the Court of Cassation is either confirmed ( confirmé) or quashed cassé).
The Criminal Chamber unites the attributes of the Chamber of Requests and the Civil Chamber, with respect to applications against judgments pronounced in last resort by the Criminal Tribunals.
The Public Ministry ( le Ministère Public) being the Procurator-General, or one of the Advocates-General, is heard in all cases: the decision of the Court may be, of course, in conformity or at variance with his “ conclusions.”
Practically in every case the Advocate General de service examines the arguments brought forward on each side, and states his “conclusions.” Sometimes these are in accordance with one side or the other. Sometimes he adopts a middle course. He guards the Court against collusions and surprises.
The principle on which is based the intervention of the Public Ministry ( Ministère public) in civil matters is, that the interests of those may be protected who, on account of their age, their weakness of mind (a), or other cause, may not be capable of exercising their rights themselves.
Art 83 of the Code of Civil Procedure is as follows:— “There shall be communicated to the Procurator Imperial the causes following:—
“1st. Those which concern public order, the state, the domain, communes, public establishments, gifts and legacies in favour of the poor. 2ndly. Those which concern the
status of persons (
l'êtat des personnes) and guardianships (
les tutelles). 3rdly. Exceptions of incompetence
(b) (
les déclinatoires sur incompétence). 4thly. The settling of judges
(c)
(les règlements des judges), challenges and references (to other tribunals) on the ground of relationship or alliance
(les récusations et renvois pour parenté et alliance). 5thly. Proceedings against a judge for acts done in the exercise of his functions
(les prises à partie). 6thly. Suits by married women not authorized by their husbands, or even, when authorized, when their dowry is involved
_________________ Footnote _________________ (
a) Take, for example, Mrs. Talbot's Divorce case, Session 1856. (
b) Of jurisdiction. (
c) Where there is a conflict of jurisdictions.
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Moreover, Article 25 of the Law of 1 Dec. 1790 provides that,—
“If the Commissary of the King at the Court of Cassation learns that a judgment has been pronounced in last resort, directly contrary to law, or to the forms of proceeding, and against which, however, none of the parties shall have acted in the time fixed, after the expiration of this time he shall give cognizance thereof to the Court of Cassation, and if it is proved that the forms or the laws have been violated, the judgment shall be quashed, without the parties being able to take advantage thereof to avoid the dispositions of this judgment, which shall be equivalent to a compromise between them.”
The position of the Imperial Procurator is very high. He is amenable only to the Minister of Justice. The Advocates General are subject to the Procureur Impérial, but they are all independent of the Court.
With regard to decisions pronounced en audience solennelle, the law of the 1st April 1837 provides, that when, after “cassation” of a decree or judgment, the second decree or judgment pronounced in the same matter, between the same parties, acting in the same capacity, shall be attacked on the same grounds as the first, the Court of Cassation shall decide, all the Chambers being united (toutes les chambres réunies). If the second decree or judgment be quashed on the same grounds as the first, the Court or Tribunal before whom the matter is sent must conform to the decision of the Court of Cassation on the point of law determined by this Court. (Art. 1 and 2.)
The jurisprudence of the Court of Cassation does not “fix” the law. The following, among other instances, may be cited to show this. (In order to render the matter clear, it may be desirable to give the Article of the Code Napoléon on which the question turns; it is as follows:—
“896.—‘Substitutions’ are prohibited. Every disposition by which the donee, the heir appointed, or the legatee,
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The Court of Cassation in the following cases has decided that the tribunals appreciate, without control, the existence as well as the nature and character of “substitutions”:— Decrees of the Court of Cassation of 27 April 1819, D'Alsace v. de Caraman; 12 May 1819, Auberge; 17 August 1824, Delabrosse v. Marguillé; 1 February 1827, Ornano. In other cases, the Court of Cassation held, on the contrary, that the question whether an instrument did or did not contain a prohibited “substitution” did not rest exclusively with the Tribunal of First Instance and Royal Court, but was subject to the appreciation of the Court of Cassation:—Decrees of the Court of Cassation of 22 June 1812, Royère v. Blayac; 24 March 1829, Percher v. Berreau; 20 January 1840, Garneray v. Cabanne.
16, Place de la Madeleine, 18 April 1857. R. O. Maugham.
We are informed by Mr. Crawford, of the Chancery Bar, (now stationed at Paris,) that the Judges in the Court of Cassation do not severally state their rationes decidendi; so that, “for any thing that appears, the President, who is the mouth-piece of the Court, may, when he delivers the judgment, be expressing the opinions of only a majority of one.” This is possible; but when such rare instances occur (perhaps once in a century), it is better that the minority should be condemned to silence. And, although it is true that a decision of the united chambers does not constitute law in the sense ascribed to a Judgment of our House of Lords, yet M. de la Chere (a most eminent Advocate himself, practising in the Court of Cassation) writes, “Une Cour qui se met en opposition avec la jurisprudence de la Cour de Cassation, Chambres réunies, s'expose à voir son arrêt infailliblement cassé.”
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The following communication, with which M. de la Chere has favored us, is so instructive and so authoritative that it is best to insert it at length:—
La Cour de Cassation est composée—
D'un Premier Président,
De trois Présidents,
De 45 Conseillers,
D'un Procureur-Général,
De six Avocats-Généraux, et
D'un Greffier-en-Chef.
Elle est divisée en trois sections, savoir:
La Chambre des Requêtes,
La Chambre Civile, et
La Chambre Criminelle.
Le nombre des juges étant de 49, y compris le Premier Président et les Présidents, chaque chambre a seize juges habituellement, y compris son Président, et dix-sept quand le Premier Président la préside. Ordinairement, ce magistrat siège à la Chambre Civile. Il peut présider chacune des trois chambres.
Les pourvois en cassation, en matière civile, sont d'abord soumis à la Chambre des Requêtes. Lorsqu'elle ne les rejette pas, ils sont soumis à la Chambre Civile, qui a seule le droit de casser définitivement.
Cependant, en matière d'expropriation pour utilité publique (a), les pourvois sont portés de suite devant la Chambre Civile, sans passer d'abord par la Chambre des Requêtes.
J'aurais une foule d'observations à présenter, et d'explications à donner sur les attributions très-variées de la Cour de Cassation, et la procédure suivie devant elle. Je me bornerai à dire ici, pour ne pas être trop long, qu'on ne peut déférer à la Cour de Cassation que les décisions judiciaires (jugements, arrêts, ordonnances de magistrats) rendues en dernier ressort.
La loi du l er Avril 1837 dispose ce qui suit:
'Lorsque, après la cassation d'un premier arrêt ou jugement
_________________ Footnote _________________ (
a) Expropriation pour cause d'utilité publique is described by Descherelle (Dictionaire National) as “action de déposséder un individu dans l'intérêt publique et moyennant indemnite prealable, de tout ou partie de sa proprieté.
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‘Art. 2. Si le deuxième arrêt ou jugement est cassé pour les mêmes motifs que le premier, la Cour royale ou le tribunal auquel l'affaire est renvoyée se conformera à la décision de la Cour de Cassation sur le point de droit jugé par cette Cour.’
La Cour de Renvoi demeure souveraine pour l'appréciation des faits, et peut, en toute liberté, les soumettre à un nouvel examen, les envisager sous de nouveaux rapports. Mais, si au lieu de se conformer pour le point de droit à la jurisprudence de la Cour de Cassation, elle adoptait le système des arrêts cassés, il n'y aurait pas lieu de solliciter un nouvel arrêt des cbambres réunies. La Chambre Civile devrait annuler ce dernier arrêt, non plus par la question de droit qui avait soulevé le conflit, et á l'occasion de laquelle la Cour de Cassation, chambres réunies, aurait épuisé sa juridiction, mais pour violation formelle de la loi du l er Avril 1837.
D'ailleurs, un arrêt rendu par la Cour de Cassation, chambres réunies, ne fixe pas invariablement la jurisprudence à l'égard des cas nouveaux et semblables qui peuvent se présenter. Rien n'empêche done une Cour Impériale (a) de décider une question de droit soumise à son appréciation, dans un sens opposé à celui qui a été adopté par la Cour de Cassation, chambres réunies. En sorte qu'il est parfaitement exact de dire qu'un arrêt des chambres réunies ne fait pas loi. Seulement une cour qui se met en opposition avec la jurisprudence de la Cour de Cassation, chambres réunies, s'expose à voir son arrêt infailliblement cassé, à moins que le personnel et les idées de la majorité de la Cour de Cassation ne se soient tellement modifiés, que cette majorité croie devoir decider autrement qu'il n'a été décidé précédemment par les chambres réunies.
Car, il faut bien qu'on le sache, un arrêt de la Cour de Cassation, chambres réunies, ne lie pas à jamais la Cour de Cassation sur la question qu'elle a tranchée par cet arret.
_________________ Footnote _________________
( a) An “Imperial Court” (though with a sounding title) is subject to the review of the Court of Cassation, which 6tands over all.
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Elle a le droit de modifier une jurisprudence ainsi établie, fixée, par un arrêt solennel. Elle le peut; et, quoique rarement, elle a usé de ce droit.
Si d'autres explications sont jugées nécessaires, je les donnerai avec le plus grand plaisir.
J. de la Chere.”
Paris, 31 Mars 1857.”
From this clear and masterly statement, it would seem that the combination of three chambers is only a possibility The bulk of the business is done by the Civil Chamber, and only eleven Judges are required to be present. Therefore, a tribunal of 49 must be a rare and startling spectacle.
In Scotland we know that fifteen Judges, sitting together, were found too many. Lord Eldon (in the Ascog case, 4 Wils. & Sh. 210) gives this anecdote:—“I had the honour of arguing a case before the House with James Boswell, and, being his senior in the profession, I stated with great humility the extreme pressure under which I laboured, for I had to argue against the unanimous opinion of the fifteen Judges. He came to the bar (with what degree of modesty it is not for me to determine), but he blamed me to the House for prejudicing the cause of my client; stating that when the Judges differed they thought very little about the matter; and when they agreed, they thought nothing at all about it.” We were told by Mr. Black, the late respected Editor of the Morning Chronicle, that the court of “fifteen” was a “regular bear garden;” although some of the Judges, more pacific than the others, slept on the bench during arguments; particularly Lord A., who had to be roused to give his vote. The Lord President, in telling the division, would ask, “My Lord A., how does your Lordship vote?” Lord A., fairly awake, would answer by a counter question, “How does my Lord Justice Clerk (a) vote?” The President would reply, “My Lord Justice Clerk adheres;” upon which Lord A. would at once tender his vote thus:— “Then I adhere.” His Lordship having thus discharged his duty, would resume his nap, for he was extremely comatose.
_________________ Footnote _________________
( a) Macqueen (Lord Braxfield) who ruled the Court by the force of intellect. See the late Mr. Forsyth's philosophical and diverting opinions delivered to the Juridical Commissioners in 1824, p. 146.
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Fifteen is of course an absurd number for ordinary business; yet, on special occasions, all the Scotch Judges (now reduced to thirteen) still unite; and the new Court for the consideration of Crown Cases at Westminster sometimes say, “We are only Five, therefore it will be better that this case be argued before the Fifteen Judges.” — (See Times, 4th May 1857.
The Courts of ultimate appeal in Engand and in France, present points of contrast as well as of resemblance.
The Court of Cassation is one of the most important institutions of modern France; giving to the whole jurisprudence of the Country, criminal as well as civil, coherence and uniformity, without endangering the necessary independence of the inferior Tribunals. It has been preserved in every essential particular throughout all the changes of the Government, from the great Revolution to the present time. And it has possessed the confidence and enjoyed the respect of the French people equally under the Republic, the Monarchy, and the Empire. It has moreover been extended to other Countries.
The French and Americans have Government Reporters. Lord Brougham once asked the High Chancellor of France whether the published accounts of the celebrated Conferences before Napoleon the First on the preparation of the Civil Code were of a rigid fidelity. The answer was “Plutôt d' une fidelity discrete, Monsieur.” (a)
Plowden, in the preface to his Reports, says—“Anciently there were four Reporters, who were chosen for the purpose and had stipends from the King; which persons used to confer together, and their Reports, being made and settled by so many, and by men of such approved learning, carried great credit with them.”
Coke, in the Introduction to his Third Report, says: “How profitable and necessary the Reports of the Judgments
_________________ Footnote _________________ (
a) The Chancellerie of France had two officers called les grands Rapporteurs.
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Blackstone says: “This wise Institution was soon neglected; and from Henry VIII. the task has been executed by many private hands, who, through haste and inaccuracy, mistake and want of skill, have published very crude, imperfect, perhaps contradictory, accounts of one and the same determination.”
Judges, Magistrates, and legal Officials, ought to be supplied with Reports (a), published, like Parliamentary papers, without charge, or at a small charge. These might be sold to the legal profession generally at a low price, so as to aid, if necessary, in defraying the cost. But the diffusion of the law should be regarded as a public matter (b).
Plowden says the Reporters deliberated upon doubtful resolutions. If the progeny were rickety, or likely to prove mischievous, they smothered it. Sometimes the Synod took cognizance of incidental dicta—remembering how apt litigants are to snap up such things, and how apt judges are to repose on them.
In a country where precedent is everything, Reports should be brought out almost with as much care as Acts of Parliament; for, under pretence of declaring or revealing, they, in fact, make the law. And it has come to this, that instead of a help, Reports are, in many instances, an incumbrance
_________________ Footnote _________________ (
a) Of course Magistrates would only desire the criminal cases. (
b) In a paper printed for the Home of Lords in 1850, it is said that in America “the office of Reporter is considered of such importance that the holder of it ranks next in precedence after the Attorney General.” America, however, is but a Republic.
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Considering, however, the circumstances of discouragement (a) under which Reports are in general prepared, they are wonderful efforts of care and accuracy, and honourable specimens of human perseverance. Their oppressive prolixity (inducing somnolency unless the student's ardour be great), the poverty of their ordinary materials, the expenditure of time and money which they occasion,—are not chargeable against the ill-rewarded enthusiasts who compose them. Thus Mr. A. publishes a long case (b) simply because Mr. B. has published it, or may publish it, under a similar apprehension respecting Mr. A. So, again, Messrs. C. D. E. and F. are respectively operated upon by the like curious rivalry. Each fears the omission by himself of something that may be cited from another. Hence, the Reports recommend themselves to Buyers, not as containing the good cases, and the good dicta, but as containing all the cases and all the dicta. No wonder that the speculation of the Publishers proves sometimes worse than that of those whom they employ. The remedy, we fear, cannot reasonably be looked for until there is established—what was once called Lord Brougham's dream,—a Minister of Justice. Such an Officer would do something to extract the brains of the old reports, and something to place the new ones under supervision with a view to general coherence.
_________________ Footnote _________________
( a) The remark of course does not apply to the House of Lords.
( b) One of Sir William Grant's best decisions, a ruling authority is given in fourteen lines.— Carr v. Carr 1. Merivale, 541. This, be it observed, was a chancery case.