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So that certainly it is a great inconvenience that men's estates and interests, and the judgment of learned judges given with great deliberation and advice, should be subject to be shaken, and it may be, overthrown, by, it may be, one single content or not content. Whatever the extraction of men be, yet they are not born with the knowledge of the municipal laws of a kingdom, nor can be supposed to be inspired with the knowledge of the law by the acquest or descent of a title of honour.
'And this was well known and observed by the king and nobility and wise councillors of antient times. And therefore there were provisional remedies for this inconvenience in the judicatory in the House of Lords.'*
Mr. Hargrave, who may be termed the Selden of the eighteenth century for the learning and acumen with which he followed these researches, speaks even more unceremoniously of the Lords' jurisdiction in his preface to Sir Matthew Hale's Treatise. He concludes by asserting—
'That the grand jurisdiction of the Lords so boastingly exhibited by Prynne as inherent, universal, and supreme, was a mere concoction of the antiently constituted and antiently abolished jurisdiction of the king's concilium ordinarium, and of the recently constituted and recently abolished Star-chamber jurisdiction of the same Council; that whilst this expired jurisdiction subsisted, as, on the one hand, it was only exerciseable by the House of Lords as mixing with and blended into the Concilium ordinarium, so, on the other hand, it was equally derivative from the Crown, and subordinate to the whole Parliament: that Prynne's proud mansion of omnipotent jurisdiction is only the mausoleum of departed judicature: that the grand original jurisdiction which Prynne attributes to the Lords, is a nonentity: and that the lofty appellant jurisdiction which they really possess and exercise, was neither so antient, nor so extensive, nor so pre-eminent, nor so unquestionable as Prynne asserts; but yet is now become firmly fixed upon the solid rock of constitution, and is at the same time so high and mighty, as to be only supervisable and controulable by that full and whole Parliament of which themselves are an integral and essential member.'†
Before we proceed to discuss the actual grievances complained of and the remedies proposed, it may here be convenient to consider what are the essential requirements of a Supreme Court of Appeal, and what principles ought to be kept in view in the constitution of such a tribunal.
I. One of the first principles of every free and well-ordered polity is an entire severance of the judicial from the political power. In former times when the prerogative of the Crown.
* Hale's Jurisdiction of Lords' House of Parliament, p. 155.
might, and sometimes did, exercise an undue influence over the administration of justice, it was considered essential to the dignity and independence of the judicial office, to place the men who filled it as far as possible from the control or the seductive influences of the Court. That is still an important element in the Constitution. But is it less essential to the calm and uniform performance of the duties of a court of justice, to remove the members of it from the excitement and the conflicts which are the life of political assemblies? Is it possible that men who are engaged every night in the strife of parties and the struggles of debate should meet every morning in the same spot the scene of their contentions-to adjudicate with unruffled composure and undeviating precision on the rights of their fellow countrymen? The judges are excluded from the House of Commons. Of late years even the Master of the Rolls and the Judge of the Admiralty Court have ceased to represent, in a legislative capacity, any portion of the people. But this representative character was not the only objection to the union of political and judicial duties, though, by one of the anomalies of the Constitution, the supreme appellate power over all the courts of Law and Equity is still vested in a political assembly. An appellate tribunal so constituted is exposed to the evil of political mutability, since the principal judicial member of the House, the Chancellor, only holds office by the precarious tenure of a party majority. Its forms of proceeding are not those of a Court of Justice but of a senate; its judgments are given in the language of debate; its sentences are recorded as votes; the peers who commonly assist the Chancellor in this portion of his duties are the very men who are endeavouring to supplant him in the confidence of Parliament, or whom he has recently supplanted; and the vicissitudes of political life materially affect the chances and expectations of every suitor in such a court.
Nor is the inconvenience less great of the too great admixture of the judicial and legal element with the legislative functions of the House. All experience proves that those who are engaged in the daily administration of the law are commonly not the persons best qualified to amend it. The great reforms which have been accomplished within the last few years-as for example the great change in the Law of Evidence-have all been effected in defiance of the all but unanimous opposition of the Judges, by men like Lord Brougham and Lord Lyndhurst, in whom the powers of statesmen have outgrown their previous education as lawyers. In the hands of statesmen the science of the law is a great instrument in the work of legislation; but to the
purely judicial mind the science of the law is the end of existence, and a barrier to improvement. In the eyes of the former the law is made for man; in those of the latter man is made for the law.
To identify the Supreme Court of Appeal with one of the great political bodies of the legislature is therefore a measure which no one would contemplate for a moment if such a state of things did not exist already. Conscious of the defects. and evils which such an institution contains, the good sense and propriety of feeling of the Peers themselves have been exerted, not without success, to remedy or to conceal these anomalies. We shall not assume the indelicate and invidious task of inquiring how far that success has been complete; very great and long-continued exertions have undoubtedly been made by the law lords to uphold, as far as possible for the public good, the jurisdiction they claim; and the other members of the House have best shown their respect for it by withdrawing from the exercise of it altogether, though the modern distinction between law lords and lay lords is wholly unknown to the Constitution. At the same time the evidence taken by the Select Committee of the Peers, and which is now before the country, does establish, beyond all possibility of doubt, that very great irregularities have not unfrequently occurred in the administration of justice by this tribunal. Causes have often been heard by a Court consisting of only one or two legal Peers. It is alleged that judgments have sometimes been delivered by Peers who had not heard the whole argument at the bar. The opinions of the Court of Session in Scotland, and of the English and Irish Judges, have been overruled by decisions of doubtful authority. The proceedings of the House are expensive, dilatory, and irregular; and in some instances the fate of appeals from Scotland is shown by the Scotch witnesses to have been eminently unsatisfactory. In fact it has been said with severity, but not without truth, that Scotch causes are as often brought up by way of speculation on the ignorance of the House of Lords as in reliance on its superior judicial ability.
II. The second grand principle essential to the efficiency and authority of a Supreme Court of Appeal is, that such a tribunal be so constituted as to possess an amount of judicial authority and legal weight exceeding the combined strength of the Courts whose judgments it has to review.
It is evident that if the appellate jurisdiction has not this superiority, it is a mockery and a snaremockery and a snare-a positive wrong to suitors, and an injury to the law itself. The revision and reversal of the deliberate sentence of a Court of Justice is
necessarily a trial of strength between the Judges of that Court and the Judges of the Superior Court; and unless it can reasonably be presumed that a greater amount of experience, wisdom, assiduity, and penetration resides in the Upper Court, all the delay and the cost of a rehearing may be incurred only to undo what was well done before.
Nor does this evil fall on the suitors only. It is the duty of a tribunal of the last resort to settle the law itself where it is doubtful; to overrule previous conflicting decisions; and sometimes to lay down principles which override the whole course of justice. Exalted rank and adventitious dignity can do nothing to support a judgment which is exposed to the daily criticisms of the bar and the searching examination of the whole judicial bench and although in any given case the decision of the Supreme Court of Appeal is of course final, as far as the interests of suitors are concerned, yet that decision is perpetually exposed to comment and animadversion, as a part of the fabric of the law itself. In order, therefore, to invest such decisions with the authority they ought to possess, if they are effectually to bind the whole administration of justice, they must emanate from such portions of the judicial system of the Empire as are most qualified to frame and to propound them.
This consideration is decisive in our minds against the establishment of any fixed Court of Appeal consisting of three or four permanent judges, sitting in no other capacity, be their personal qualifications what they may. It is highly improbable that any three or four men can habitually be found whose superiority is such as properly to place the whole administration of justice in all its multifarious branches under their control. Human nature and legal education do not produce such beings. If they existed at all, they ought instantly to be invested, not with the intermittent functions of a judge of appeal, but with the highest offices in the State. The relative authority of such a Court of Appeal must rest altogether on personal considerations, which are precisely those it is most difficult to deal with. A judge eminent in one Court fails in another; or his faculties decline with age; or his appointment may have been injudicious, not to say improper. Yet the result of any of these circumstances would be that the Superior Court would forfeit its prestige, and that its decisions would lose the respect of the bench and the bar.
The Judges of the Courts of Law and Equity in this country may be considered as a sort of college, or learned corporation, consisting of men, all of whom are deservedly respected for their high character, their spotless integrity, and their assiduous ap
plication. In their personal qualifications and attainments the ordinary diversities of character and genius must occur; and in the vast and intricate ramifications of English law, not to speak of the laws in other parts of the Empire, these diversities manifest themselves by a particular excellence in certain branches of the profession-the collective result, however, being a complete exposition and effectual application of the laws, of which these judges are the depositories and guardians. A careful and judicious combination of certain members of this body (for it is never desirable that a Court sitting on any particular cause should be so numerous as to weaken the responsibility of each member of it) will always afford the best authority which can at any given time be obtained in Westminster Hall on a legal question-an authority which will command the respect of the legal profession and of the country at large.
It is, moreover, desirable that a Supreme Court of Appeal should comprise some judges who are habitually engaged in the daily business of other Courts, and in the full discharge of a high judicial office; but, on the other hand, that it should comprise some other members sitting chiefly and 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 minds of these two classes is extremely important. A Court of Appeal, composed solely of judges, taken from the other Courts of co-ordinate jurisdiction, as in the present Court of Exchequer Chamber, is placed too near the decisions it has to control. A Court of Appeal, from which the members of the other Courts are excluded, would be too far removed from the ordinary course of practice.
If these principles are sound, it follows that a Supreme Court of Appeal ought, as much as possible, to be divested of any political character, and that it ought not to be composed of a small number of permanent judges, but enabled to embrace and concentrate, on a given question, the highest judicial authority of the whole bench.
In point of fact, these are the principles upon which Lord Brougham acted, when, as Lord Chancellor, he effected a complete reform in the appellate jurisdiction of the King in Council, by the creation of the Judicial Committee of the Privy Council. In some respects it was even more difficult to provide an efficient Court of Appeal for the exercise of this varied jurisdiction, than to provide for the hearing of English, Irish, and Scotch appeals by the House of Lords. Appeals lie to the Queen in Council from all the colonies of the Empire, with their various codes of