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duties were not duly performed by Lord Eldon; but the general terms above quoted, and the occasion of the appointment of that very committee making the report, sufficiently declared their opinion. And if there was a manifest impossibility in 1823, it is still more strikingly manifest now. The appeal business may be described with tolerable accuracy as a per centage of the suits decided before the Vice-Chancellors' Courts and the Master of the Rolls. These courts, two in number in 1823, have been four ever since 1841. This alone would lead us to expect a similar augmentation in the number of appeals. But beside the greater facility of coming to the hearing from this cause, there has been a continued series of efforts on the part of the equity judges, in general extremely well directed, towards expediting and cheapening the steps of proceedings in a suit. So that the suits might be expected to be more than twice as many as in 1823. They are actually, however, scarcely so much; the average number of causes disposed of (including the dropped causes) in the years 1819-23 having been about 900 per annum, and in the years 1846-49 about 1600 per annum. The increase is still very considerable; and if we reflect that owing to the much longer delays prevalent thirty years ago, the "dropped causes" bear a far greater proportion to the whole than they do now, and also that a vast variety of matters now come before the courts by petition which at that period either were totally excluded, or were only admitted by the usual proceeding on bill and answer, we shall see that the real increase in the work done at the present day by the inferior courts is probably more than double what was done in the period 1819-23.1 And the appellate business of the Lord Chancellor has increased in a similar ratio accordingly. How then can the weaker men of the present generation be called upon to perform more than even Lord Eldon ever undertook? As regards political avocations, it may be said that no discussion of the present day is equal in importance to the Emancipation and Reform Acts, which hung like contending clouds over the heads of every Government for the last fifteen or twenty years of Lord Eldon's continuance in office. But to a political Lord Chancellor every measure is of distracting importance which bears in its fate the fate of the Government; whether he strive to establish the barefaced but too successful impositions of a Pacifico, or struggle with all the might of learning and
1 The numbers above quoted are from the Parliamentary Returns and include causes only, not petitions, &c., of which we have seen no return. All causes 'disposed of" are included, whether actually heard, or compromised or abandoned.
authority to perpetuate the disabilities of half the population in one kingdom, and the whole population in another. each case, as far the Lord Chancellor is concerned, the seals are at stake, and, personally, he is as much interested in the one question as the other. And as to the other important functions of the Lord Chancellor besides sitting as a judge of appeal in chancery and a leading member of the Government in the House of Lords, e. g. in his characters of chief judge of appeal in the House of Lords as a court of appeal, privy councillor, quasi minister of justice, referee and law adviser of the Government, guardian of lunatics, &c. &c., in every one of these respects it will be readily conceded, or, if necessary might be very readily proved by the returns, that his duties are more onerous than ever. Under such circumstances, how can any person be found to withstand the appeal of common sense, that one man should no longer be compelled to pretend to do the work of three?
We forego all advantage of the excellent arguments showing the absurdity of a political Lord Chancellor, the loss of time, the loss of money, and the abnegation of all principle. We will not ask, or at least will not examine, how a system can be endured under which an admirable judge, just as he had acquired the confidence of the suitors and a full confidence in himself, should drop at once from the bench because a Hellenizing Portuguese Jew cannot make a British senate believe his preposterous inventions (as Lord Cottenham might have fallen); or how another equally admirable judge should drop from his seat through the failure of the potatoe crop in Ireland (as Sir Edward Sugden did). The intendant in Gil Blas excusing his master's non-attendance to greet the arrival of a royal guest, gave fifteen excellent reasons for his absence, and as the sixteenth, that he had died three days before. We shall not enter into the various other excellent arguments which have been so often urged against the existing system. We are content to rest the decision of the question on the manifest impossibility of the case so loudly declared by the Lords' Committee in 1823. We will still hope that that which has been for so many years admitted to be manifestly impossible to be performed, will at last cease to be attempted.
We fully and readily admit, however, the great difficulties in the way of a reform; difficulties, which, as in almost all other reforms, reside in the reconstructive part of the operation. Sever the functions of the Lord Chancellor, let the Keeper of the Great Seal no longer sit in Chancery; and how is he to be replaced? Who is to be the Judge of Appeals in Chancery?
VOL. XV. NO. XXVIII.
Shall the court still consist of a single judge? Who shall preside in appeals in the House of Lords? Take away from the Lord Keeper of the Great Seal all his judicial practice and habits, and he will soon cease to be an efficient legal adviser of the government, such as the Chancellor is at present; and he is the sole legal adviser in the Cabinet. The steel will soon get dull unless it be kept in constant use. On the other hand, if the Lord Keeper preside in the House of Lords, without any other judicial functions, it is to be apprehended that he will be less efficient than other judges whose judicial habits have been kept in constant exercise. And there is no spectacle more unseemly in a court of justice than a president of less authority than an inferior judge, unless it be a judge succumbing to an advocate. Then there is the Judicial Committee of the Privy Council, which is susceptible of amendment; and if retained as an independent court, by multiplying judges and jurisdictions, greatly augments the confusion. Besides there are various questions as to the hands to whom various other duties now discharged by the Chancellor should be entrusted; which, however, are of comparatively less moment.
The confusion engendered by the consideration of the reform of the Judicial Committee, however, we should clear away by a very simple yet serious expedient (viz.) the establishment of one Court of Appeal for all matters, instead of two. At present, there are the House of Lords and Judicial Committee of the Privy Council, totally independent of each other, and each without any common court superior to both, by appealing to which incongruities, if they arose, might be corrected. Such a division can only expose us to the risk of uncertainty from contending decisions. Each tribunal decides questions arising on common law, equity and civil law, and acknowledges no superior but an act of parliament. Lord Langdale, struck with the same incongruity, proposed in 1836 that there should be but one Supreme Court of Appeal; but he proposed to commit it. to the hands of the House of Lords, a Lord President and Lords Assistant being created for the purpose of giving its decisions due solemnity. We confess that we should prefer to see the Judicial Committee, or some such tribunal, (empowered, of course, by act of parliament,) entrusted with the ultimate appellate jurisdiction, for reasons which we have stated more at large in some observations which will be found in our last volume (vol. 45, pp. 47–51). But without recapitulating the reasons for this preference, or insisting any preference for one tribunal over another, it is surely evident that there should be but one such court. In addition to the above reason on principle, there is to be taken into consideration the great practical
convenience in having only one court. Each is at present inefficient, or less efficient than it might be, from precisely contrary faults; the Judicial Committee wants a head, the House of Lords wants a body. The difficulties in the way of providing an effective head for the Judicial Committee seem insuperable. Lord Brougham's Bill for that purpose met with a reception not encouraging to renewed attempts. And the President of the Council is, of course, a mere political appointment without the slightest reference to his legal acquirements. And in providing a body for the House of Lords, we must either select such legal dignitaries as are already members of the Judicial Committee, in which case we run into the incongruity of having the same individuals constituting two Supreme Courts of co-ordinate jurisdiction according as they sit in this room or that; or else, we must select and create other worthy legal dignitaries, who, probably, will be scarcely of equal reputation with the former, and will certainly all together swell the number beyond what is decent or expedient or economical. This consideration, although we think we have rightly placed it both last and least, is yet of no light moment.
The Bill now before the House of Lords enacts that the two proposed new judges shall, if Privy Councillors, be members of the Judicial Committee. But this is throwing water into the sea. There are already thirteen members of this Committee. It is a head that is wanted to that body-not additional joints to the tail.
It is intended of course in the passage through the House of Lords to replace the clause which originally authorized their lordships to summon any of the equity judges to give their assistance in cases of appeal, and which clause was omitted by the House of Commons as involving a question connected with the privileges of the Upper House. That clause would go far to provide some remedy for the defect which we have remarked in the constitution of the House of Lords as a Court of Appeal, viz. the absence of a body. In general it consists of the Lord Chancellor. But why was this idea not to be carried out further than as regarded the English equity judges alone? In deciding on questions of Scotch law, why should their lordships not have the power of requiring the valuable assistance of the Scotch judges? In matrimonial causes, why should they not be empowered to summon the judges of the Ecclesiastical Courts? There is less occasion for providing any assistance of this description for the Judicial Committee, as it is already strong in numbers, and the members are judiciously chosen from those who have attained eminence in all branches of the law. But it
is possible they might deem the same assistance of advantage occasionally, and particularly in connection with ecclesiastical law. It was Lord Brougham who pointed out the extremely difficult and often obscure nature of the questions which under this head come within their cognizance. It would no doubt be somewhat harassing to our judges to be thus rendered liable to summonses in different directions by courts entirely independent of each other's action and control. That is one of the inconveniences which would be avoided by the merger of the two jurisdictions into one.
The only other provision in this Bill which affects the Judicial Committee, beyond adding the two new judges, if Privy Councillors, to that Committee, is sect. 15, which reduces the quorum of the Committee for hearing appeals from four to three. The change we suppose is deemed necessary to meet the convenience of members, or it would not have been made; since change for changing's sake, always an evil, is nowhere so much to be avoided as in the machinery for the administration of justice. The change, however, such as it is, has nothing but the convenience of the members to recommend it. Of all numbers of judges, four is that which is certain in case of difference to secure the largest majority-three against one; and it would have seemed a more fitting opportunity to insert a clause reducing the quorum in a Bill by which the whole number of the Committee was being diminished-not where (as in the present Bill) the Judicial Committee is being augmented. It affords, however, a very clear proof of the unfitness of the House of Lords, as at present constituted, to form a court of appeal. For if it be found so extremely inconvenient to convene a quorum of four of the Judicial Committee as to suggest a measure which, like the present, diminishes the quorum and increases the number of the whole body from which the quorum may be taken, how much more impossible must it be to get together any satisfactory quorum in the House of Lords, where the "Law Lords" are seldom more than five or six in all, and where the appeals are nearly twice as numerous as before the Judicial Committee?
But dismissing the consideration of the amalgamation of the courts of ultimate appeal, which is not alluded to in the Bill, the next object is to provide for the proper discharge of the duties at present discharged by the Lord Chancellor as a Judge of Appeal in the Court of Chancery, and, in general, most efficiently discharged. The present Bill aims at effecting a very considerable alteration here. It provides for the appointment of two new judges, who may without the Lord Chancellor exercise all this appeal jurisdiction. And it may safely be sur