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been if the estate had been only a tenth part of the value assigned to it in the judgments, and 35,000l. costs had been incurred; would all these have been charged upon the 50,000Z.?

WE

ART. X.-APPELLATE JUDICATURE.

E are about to follow a very high example,-that of the Government, we might even say of the Parliament itself, for we must postpone till our next number anything like a full discussion of this important and certainly most difficult subject, just as almost all matters of importance have been put off till the next session. There is, however, a necessity for, as it were, breaking the question, in order that the attention of the reader may be called to it in the interval, just as that of the members of the two Houses may, it is hoped, be directed to the deferred questions during the period of the long vacation. In no other way can we now pretend to deal with this subject; but we must state in what condition the late proceedings have left it.

The appellate jurisdiction of the House of Lords is of somewhat uncertain origin, and as regards the different portions of the kingdom, as well as different kinds of causes, of considerable diversity. Thus in writs of error, that is, appeals in matter appearing on the record in Courts of Common Law, it never was disputed. It was at one time denied as to appeals from Courts of Equity, and some legal antiquaries hold it to have begun in usurpation. So in Scotland, where all the estates-Lords, Commons, and Clergy-sat in one chamber, it seems agreed that there was only recourse had against the decisions of the Courts by way of protest against grievances occasioned by iniquity of the judges, and the legality of the proceeding was denied by the Courts, who sometimes punished appellants as guilty of contempt. After the Union, the right of appeal to Parliament was for some

time denied. The Lords' House, indeed, was originally constituted in a way wholly unlike what we have been accustomed to; for it had the assistance of judges and other counsellors of the Crown in hearing causes; it had even original jurisdiction as well as appellate; these assistants giving their votes as well as their advice; and their functions were general, not confined to judicial matters. But for at least a century and a half past the appellate jurisdiction of the Lords, constituted as at present, has been exercised without the least dispute in all cases, civil and criminal, from the Courts of Law and Equity in England and Ireland, though they have never had any appellate jurisdiction in matters cognizable by the Admiralty or Consistorial Courts. They have also exercised, without dispute, the appellate jurisdiction in all civil cases in Scotland. From the Channel Islands and the Isle of Man the appeal lies to the King in Council, as it also lies from the foreign dominions of the Crown, and from the Admiralty and Consistorial Courts.

Now it is as little a matter of question or of doubt, that this most important jurisdiction has been exercised by the Lords during the whole of the long period to which we have referred, with universal approval; that although objections have occasionally been offered to some of the arrangements made with a view to the despatch of the business, and complaints have sometimes been heard of the delays occasioned by its increase, and defects have been stated, as the want of judges educated at the Scotch Bar, or of those who in Ireland are conversant with the habits of the people and the management of property; yet, as a whole, and generally speaking, the Lords have given great satisfaction in the exercise of their judicial functions.

Accidental circumstances at different times gave rise to criticism, and a temporary dissatisfaction was experienced. Thus, Lord Eldon's illness having occasioned an arrear in the business, he sometimes was replaced by a deputy-speaker not a member of the House; afterwards, Lord Gifford, first when Chief Justice of the Common Pleas, and then when Master of the Rolls, supplied his place, and gave general and entire satisfaction. The rules of the House require the presence of

VOL. I. NO. II.

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three peers to make a quorum,-of seven in committees. Lord Eldon therefore made an arrangement which has been the subject of great remark, and indeed invective, that two lay peers in rotation should attend, in order to make sure of a quorum; and no doubt their taking part in the business was merely nominal and apparent; for different lay peers might attend on the hearing of any case that lasted more than one day, and the decision might be given when none of them were present who had attended the hearing. It would, perhaps, have been better to rescind the standing order as to a quorum, though all men being aware that none but the law lords took any part in the judicial business, no one was deceived by the device which had been fallen upon; and it may be added, that the abuse lavished upon it was never extended to the Committee of Privileges, where precisely the same consequences may, and often do, result from the exigency of seven, as in the House from requiring three to be present. But the important consideration is, that the conduct of the business, and its despatch, generally gave entire satisfaction; that the causes were heard, and their merits examined, and judgments given, by men whose capacity, learning, and integrity never were questioned, and who spared no pains thoroughly to sift the merits of each case.

We have said that at different times complaints were heard, and it might be incorrect to affirm that for these there never was any solid foundation. One Chancellor might be too dilatory; another might be too hasty: one might be too anxious, and encourage prolixity at the Bar; another too impatient of discussion and repetition. The difference of various capacities was undeniable; and there could not always be a Hardwicke or a Mansfield on the woolsack. Erroneous judgments might be given, both by mistake in law and in fact; and for the moment discontent might prevail both in the Profession and in the public. But as no human tribunal can pretend to an exemption from error, as no procedure, how wisely soever it may be devised, can secure a Court from miscarriage, and the suitor from injustice; it may be safely affirmed that the Lords exercised their office with as little ground for complaint as any of the other great Courts in the empire, and that evils and

inconveniences occasionally experienced were in their nature accidental, and of temporary duration.

An inconvenience of the same description, in the session of 1855, seems to have given rise to the late complaints, and the measures devised for meeting them. For some weeks, only. two law lords-the Lord Chancellor and Lord St. Leonardssat to hear causes; and upon three or four of these they could not agree. Instead of directing a second argument, by one counsel on a side, with the attendance of some third law lord, which is the practice in the House of Lords, as well as in the Judicial Committee, they proceeded to a decision; and as the rule of the House in an equality of votes is præsumitur pro negante, in each case there was an affirmance. This, of course, gave great discontent to the appellant, and it also produced an impression that there had been no decision at all in these cases. The answer to this no doubt was, that as the judgment in the Court below must be presumed right until the contrary is shown, so there were here two opinions against one, and a right result had been arrived at. Nevertheless it must be admitted that the circumstance was unfortunate, and that the accident of it occurring so often within a week or two had an inevitable tendency to create comment and excite discontent. It was further observed, that of late years there had been much greater difference, not only of opinion among the law lords, but of reasons assigned for opinions in which they all agreed. There was more of debating, it was thought, than there had formerly been in the judicial proceedings of the House; and this was by some supposed to affect the authority of the decisions, by others to encourage appeals, by many to create heartburnings among the parties, if not among their counsel. By listening to such complaints, which, indeed, found a vent in the House of Commons, and to a certain degree had been taken notice of in the House of Lords itself, the Government was induced to apply a remedy without due consideration, which would have shown that the inconvenience complained of was temporary, and could easily have been removed by arrangements among the law lords themselves. The creation of Baron Parke as a peer for life was resolved upon; and as in his case an

hereditary peerage would have had precisely the same consequences, he having no son, this step was a plain indication of the resolution to create more life peers; and so great an innovation at once and inevitably occasioned serious opposition in the House of Lords.

Into the merits of that question we need not now enter. Whether viewed upon the grounds of constitutional principle and expediency, or of strict legality, the Lords, after ample discussion, have, by decisive and increasing majorities, decided against such peerages; that is to say, they have decided, as far as they had a right to entertain the question, not only how far peers created otherwise than by an hereditary tenure can sit in the House, but how far, even if the prerogative extends to granting life peerages with a right to sit, such grants are consistent with the spirit of the Constitution, and ought in any case to be made. Both questions have been decided in the negative. At first there was considerable hesitation upon the first point among three law lords who were clear upon the second. Lords Lyndhurst, Brougham, and Campbell, either doubted on the illegality, or even inclined against it; led away like many of the Profession, both text-writers and others, by the supposed authority of a passage in Co. Lit., which never had been carefully examined. Lord St. Leonards had no doubt at all that the creation was illegal; but his opinion had, perhaps, the less weight because of his denial that the illegality could be doubted, when certainly there existed opinions and some authority against him. However, the point of law must now be taken to be decided by the authority of the House, with the concurrence of all the law lords save one-the Lord Chancellor, who had plainly been led away by the passage referred to (as Mr. Baron Parke himself appears to have been), and who had not taken the precaution of desiring the opinion of the law officers,—a course usual in all important cases where the least doubt can exist,and which, though not binding on the Government, is most expedient in order to prevent mistakes. It turned out that in this case the opinions of those learned persons were against the legality of life peerages.1

It was unfortunate, perhaps, that Lord Wensleydale should have

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