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exclusively appertain to the hereditary peerage, as if none but hereditary peers could have any right to take part in this judicial business, and as if the jurisdiction resided in the House itself absolutely, and not in the House as the advisers of the Crown. Sir Matthew Hale held that the opinion that the House of Peers hath a primitive inherent jurisdiction, and is the place or jurisdiction unto which is the last appeal, is an extravagant assertion unwarily expressed;' and he recommended a reform of the practice by recurring to the ancient usage of the Tryers of petitions,-a select number of the most judicious Lords, spiritual and temporal, to whom, together with the Judges, petitioners for reversals of decrees should be referred in fact, the appointment of a Judicial Committee of Peers and Judges for the hearing of appeals.
Mr. Macqueen has investigated, with great learning, the functions of those tryers and receivers of petitions- auditores querelarum—who are still appointed at the commencement of each Parliament, although their duties are lost in the night of antiquity. Undoubtedly, several distinct expedients have at different times been resorted to for the transaction of business of civil judicature by the House. As early as the 14 Edward III. a Committee sate for that purpose, and in the reign. of Charles I. (1640) a Committee of Judicature existed. It would, however, be tedious to pursue these researches.
But the constitutional mode of increasing the judicial strength of the House of Lords is beyond all doubt the ancient practice of summoning to the hearing of causes on appeal such other. judicial officers as the House may think fit; and this proceeding is fully and accurately described by the greatest parliamentary authority we have, Sir Matthew Hale.
'It should seem that in antient times these proceedings, especially in writs of error in Parliament, were for the most part if not altogether transacted by the consilium regis ordinarium, the Chancellor, TreaSurer, Justices, Barons of the Exchequer, and those whose education and experience rendered them more fit for such employment; and rarely did these matters come into the House of Lords for their decision unless it were in cases of great moment, concernment, and example.
'When they came to the House of Lords upon such an account, it seems that antiently even the concilium regis ordinarium, the Chancellor, Treasurer, and Justices, had not only a voice of advice but also of suffrage; as appears by what hath been before delivered and by the instance of the Statute of 14 Ed. III., that erected a Court for remedying delays in judicial proceedings, consisting of Lords spiritual, Lords temporal, Chancellor, Treasurer, and Judges, wherein the Judges had a co-ordinate voice as well as the Lords, as appears by
the statute itself; and as likewise appears by the composure and power of the auditores querelarum appointed by the King in Parliament, which consisted as well of the Chancellor, Treasurer, and Justices, as of Lords, and their power, not only preparative to the House of Lords but decisive, as appears before in this tract.
'But yet further, it is most evident beyond all dispute that though the record, either by writ or permission, were removed into the Lords' House, and virtually and interpretatively the judgment of affirmation or reversal was theirs, yet the actual decision and determination (in antient times even after the decay of the power of the consilium regis) was given by a select number of Lords and Judges nominated by the King in Parliament, or at least by the King with the advice of the Lords.' (Hale, p. 155.)
The practice of summoning judicial persons, not being members of the House, to assist in the hearing of certain causes, has never been abandoned, and the Judges of the Common Law Courts are still ordered to attend on writs of error. In the time of Lord Somers the Judges were held to be the regular assistants to the House, bound to be present daily and reprimanded by the Lord Keeper for negligence or slackness of attendance. They had, according to the express declaration of Sir M. Hale, suffrages on the questions submitted to them by the House; and the first great blow to their authority was the case of Reeve v. Long (1 Salk. 227.), a case of pure law, in which a decision of the Common Pleas, and also of the King's Bench, was reversed by the Lords voting at largetwelve prelates and twenty-six peers, in opposition to the opinion of all the Judges. This decision was given on the 19th December, 1694, and it established the supremacy of the Peers' jurisdiction over the opinions of the Judges. Nevertheless, such cases have not been of frequent occurrence, though some of the most remarkable instances of such decisions have occurred within the last few years. There is, however, nothing to prevent the House of Lords, or any three members of it, from overruling or rejecting, by a majority of one, an opinion which may have been submitted to the House with the unanimous assent of the Judges; but as these conflicts of authority cannot but be derogatory to the Judges, mischievous to the authority of the House, unsatisfactory to suitors, and injurious to the law itself, they ought to be terminated by allowing the Judges to record their votes in all the cases which they may be summoned to hear. It is an obvious fiction that the judicial opinion of a law peer, who generally owes his seat in the House to his political as much as to his legal eminence, is entitled to more confidence than the opinions of the eminent Judges who preside in Westminster Hall.
The simplest and, as we think, the most effectual mode of restoring to the House of Lords the highest judicial authority, would therefore be to revert to the ancient practice and undoubted right of the House to summon from the Courts of Law and Equity (and this practice might even be extended to Scotland or Ireland) such judicial persons as would be most competent to act as assistants. Judges thus summoned to the House should be invested with the judicial suffrage, and the standing order of 1660, which prohibits them from opening their lips except to answer a question, should be abolished. An opinion is entertained by persons of great learning and authority, that nothing is more mischievous to a Court than too large a number of judicial advisers, and if responsibility is to be enforced, the highest responsibility rests on the singleseatedness' of Jeremy Bentham. Probably this opinion is well founded; but though it may be undesirable that causes should be heard by more than four or five judges, the authority of those judges is increased when they are selected from a greater number, and may in fact be regarded as the representatives of the whole judicial bench. Without calling on all the Judges of the three kingdoms to attend the House of Lords, we think that it would be no evil to make them all liable to attend on appeals; and it would be easy to determine, by some system of rotation, of seniority, or of selection, those judicial officers who should be designated to act as assistants to the House in each session. Or it might be confined, as has been suggested by Sir Fitzroy Kelly, to such of the Judges as have been raised by the Crown to the Privy Council and are consequently members of the other Court of Appeal.
A certain power of expansion and flexibility, added to the fixed legal staff of the House of Lords, which consists of the Chancellor and the other law peers, would be found of the utmost utility. Modern facilities of communication have placed the Courts of Dublin and the Parliament House of Edinburgh within a few hours of London, and it would probably be found to be of great advantage that Irish and Scotch judges should sometimes take a part in these proceedings. But in England only we have now fifteen justices of the Courts of Law, seven Equity Judges, including the Chancellor, and to these might with great advantage be added the Judges of the Admiralty and of the Courts of Testamentary and Matrimonial jurisdiction."
* Lord St. Leonards moved the exclusion of these learned persons from the Bill now before Parliament. This great Equity lawyer
VOL. CIV. NO. CCXI.
Above all, the judicial assistance of these able men could be had without any admixture of politics; the House of Lords in its judicial capacity would lose much of its political character. The judicial business of the House of Lords is by no means heavy. Including the peerage and the divorce cases, which do not strictly belong to the judicial department, the House does not sit in the morning more than sixty days in the year, so that this attendance divided amongst the leading members of each Court would be far from onerous. If, however, such a Court were completely organised, and its forms of proceeding rendered less expensive, as they ought to be, we see no reason that the present Court of Exchequer Chamber-the intermediate stage of appeal should not be abolished, and access given at once to the supreme tribunal. An intermediate stage of appeal is in almost every instance a grievance to suitors. If such a tribunal is so constituted as to review with authority the decisions of the Courts below, its affirmance or reversal should be final; if it is not so constituted, it is a mere barrier on the road to justice.
These being the opinions we have been led to form on the constitution of Courts of Appeal, and on the simple means of restoring greater efficiency to the House of Lords as a judicial body, it is scarcely necessary to add, that we dissent in almost every particular from the propositions which have recently emanated from the Committee of the Lords on their own appellate jurisdiction. The scheme brought before Parliament in consequence of the report of that Committee, is simply the creation of two high legal functionaries, to be called Deputy Speakers of the House, and to receive 6000l. a year each, including their pensions (if any). They are to have filled high judicial offices in the United Kingdom for not less than five years; they are to sit with the Chancellor either in or out of the parliamentary session; they may be peers for life, but they will have all the personal and political rights of the peerage.
This plan seems, we must confess, open to every species of objection. These judicial officers will constitute a sort of triplicate of the Chancellor, who, having already obtained the assistance of two Lords Justices in his own Court, is now to have two other deputies in the House of Peers. As, however, they are to have political votes, and to be appointed, in fact, by the Chancellor himself, it is not unreasonable to apprehend that they
would therefore have excluded Lord Stowell and Dr. Lushington from the Court of Appeal on the ground of insufficient judicial attainments!
will be chosen, at least in times when party runs high, as much for their political sympathies as for their judicial eminence. But, in reality, they will bid fair to become, in the House of Lords, more powerful than the Chancellor himself; for they are to be permanent, and he is ephemeral; and, in the event of a ministerial change, the new Chancellor, perhaps altogether new to the Bench, might find himself sitting between two political opponents.
We object to the introduction of two permanent paid Judges into a House whose members have heretofore been remunerated for their public services, not by money, but by dignity; or if by money, in the form of a pension for past services only. It is inconvenient to introduce distinctions of rank and stipend between men who are called upon to discharge the same public duties; and we cannot think that an increase of pension is an adequate compensation for a diminution of rank. The fundamental condition of the English House of Lords has hitherto been, that its members are peers. If, however, the House retains the services of two eminent judicial persons to perform its own judicial duties, those duties will probably be thrown exclusively on those who are paid for discharging them, for no one else will feel called upon to attend, and the jurisdiction of the House will become altogether nominal. The salary proposed, at the rate of 6000l. a year, is enormous, if, as we believe, the total number of days of sitting would probably not exceed two months, and certainly not three months, in the year. Yet the stipend would very nearly equal that of the most laborious offices in the profession, and it would exceed that of all the ministers of the Crown, except the Chancellor.*
A Return recently made to an Order of the House of Commons enables us to state with precision the amount of the appellate business transacted by the House of Lords. In the last five years (1851 -1855, both inclusive) the House has heard 52 English causes, 13 Irish causes, and 97 Scotch causes, being an average of 32 appeals per annum: the average annual number of appeals heard by the Privy Council in the same period is 300. The average number of days of sitting for judicial business in the House of Lords is 65; in the Privy Council it is about 40. But the sittings of the House begin late, are frequently interrupted, and do not average more than four hours in length; the sittings of the Judicial Committee of the Privy Council are of six hours. The frequent adjournments of the House of Lords are an additional cause of expense to the suitors. If the House sat continuously for six hours a day, about forty sittings would dispose of the whole appeal business. Yet for this it is proposed to pay two judges 6000l. a year each, or at the rate of 300l. a day, and about 400l. for every cause! Of the business thus trans