§ The Earl of Eldon
wished to call the attention of their Lordships to a subject of much importance to the character of that House. The attendance of the twelve Judges had been re- 598 quired by that House to give their opinions upon some question relating to a writ of error he believed. Upon that occasion, neither the Lord Chancellor, nor the deputy Speaker, nor any law Lord was present to receive them. This, he could not help remarking, was most irregular, contrary to the forms of their Lordships' House, and contrary also to their dignity and interests. He recollected a case wherein the twelve Judges having given their opinions, the Lord Chancellor satisfied the House that they were all wrong. He recollected another case wherein the Lord Chancellor satisfied the House, not that the opinions were wrong, but that it would be wrong for that House to act upon them. In the present instance he believed the Judges were right, but with such instances on record, was it right that the House should be left with a lay Lord only to guide them? He hoped he should be excused for saying, that he had nothing more at heart than that the judicial business of that House should be properly conducted. He would venture to say, that the esteem and respect of the subjects of this country for the House of Lords, as a Court of Judicature, was greater than for any other tribunal in the country. It was necessary that the interests of the suitors should be properly adjudicated upon, and he should give notice of a Motion to the effect, that the opinions of the twelve Judges should never be received in that House unless some one of the Lords mentioned in the Commission of deputy Speaker was present.
The Lord Chancellor
was quite sure that his noble and learned friend was aware that no one felt more strongly than he did that the greatest possible care should be taken to keep in due and regular order, and according to the ordinary form of proceeding, the judicial business of that House; but it was perfectly well known that he was not to sit there on the day in question, for he had made an appointment to sit at ten o'clock in the morning in the Court of Chancery, to hear an appeal, in which the suitors and the parties from the country were kept waiting in town. It was well known that, in consequence of the necessary absence of the Chancellor, who was the principal Speaker of the House, the Crown had always by commission given the power generally to a deputy Speaker to sit and perform the office of Speaker. He was 599 quite sure his noble and learned friend did not mean to say there had never been a deputy Speaker before, because, while the noble and learned Lord held the Great Seals, he (the Lord Chancellor) had argued times without number, cases before his deputies, who consisted of the Lord Chief Baron of the Exchequer, the Lord Chief Justice of the King's Bench, and his honour the Master of the Rolls. There were individuals not Peers appointed to sit as deputy Speakers, and following that practice there had been a commission given to more than one on the present occasion; among the Commissioners were two noble Lords who had belonged to the profession of the law, and the noble Earl who was Chairman of the Committee of that House, and who did not belong to the profession of the law. He believed there had been some misunderstanding, because his noble friend the Lord Chief Justice of the King's Bench had been unexpectedly detained in another place. There certainly was no law Lord present when the learned Judges gave judgment; the consequence of which was, that they would either have to give their opinions to a lay Lord, which seemed to strike his noble and learned friend as something too horrible to be borne, or they would have to go away and come back on another occasion. He begged leave to observe he was not answerable for their having given their opinions to a lay Lord. He was not there at the time, but the moment he heard of it his answer was, that, if the Lord Chief Justice of the King's Bench was still detained, let him know, and he would break up the Court of Chancery, and go down to the House of Lords instantly. He hoped his noble and learned friend would reflect a little before he made his Motion, for he could not avoid thinking, regard being had to the nature of the functions of that House, that it would be very awkward, not to say impossible, for them to put upon their votes a Resolution which amounted to this, that the whole of the Peers were not competent to discharge the judicial business of that House. If the House adopted the Resolution, of which his noble friend had given notice, it would deprive itself of the exercise of one of the highest functions it could possibly exercise, without the presence of the nominee of the Crown. He would put it upon constitutional grounds, whether the House 600 would, for the first time admit, that the Crown had a right to interfere in the performance of the judicial functions of the House? It was true that the Crown issued the Commission for the appointment of a deputy Speaker, but it was equally as true that the House could, at any time, name a deputy Speaker for a day or an hour. If, therefore, the noble Earl proposed to pass a Resolution that the opinions of the twelve Judges should never be taken without the presence of a law Lord, he should object. The constitution of the country might be badly contrived, but by the constitution lay Lords as well as law Lords had a right to judge of all legal matters in that House; that was the legal and constitutional view of the subject; and surely if ever there was a case in which a lay Lord might without danger sit at that Table, it was when he had only to ask questions of the Judges, and put their opinions to the vote. For these reasons he hoped that his noble and learned friend would re-consider the subject before he brought forward his Motion, pointing out such distinctions as he had adverted to. A case came before the House, in which the Judges came to a unanimous decision, no judgment of the House was then given, but that of the Judges was taken. The decision of the House on the subject was given yesterday when he was present, in which he took no small part, and in which exemplary justice was done, by the appeal being dismissed with costs. If ever there was a case in which the sitting of a lay Lord was harmless, surely it must be in such a case as that.
§ The Earl of Eldon
assured their Lordships, that in bringing this matter under their notice, he was actuated by no personal view whatever. He was solely influenced by a desire to perform his duty according to the dictates of his conscience. He was not satisfied with the statement of the noble and learned Lord; but he was satisfied that the ancient forms of that House must be kept up, in order to enable it to retain the respect of the country. That House, he would venture to say, had been considered as a House as useful to the public as any other House in the kingdom. The noble Earl referred to the Orders of the House, to show that the Lord Chancellor ought to be present on occasions such as he had adverted to. He (Earl Eldon) never left the woolsack 601 during the time he was Chancellor without having communication with the individual who was to sit in his absence. He did not know how the present Commission was worded; but formerly it gave authority to a Deputy-speaker to sit only in the necessary absence of the Lord Chancellor. He was sure, that if the people of this country should be told that the Judges of the land attended that House to give their opinions, and that the House was left to itself in the absence of the Lord Chancellor, it would greatly lessen the dignity, importance, and character of the House in their eyes. He thought they had enough to do to retain the respect of the country in the position in which that House was at present placed, without abdicating all the forms and preservatives of dignity.
The Lord Chancellor
could not allow the extraordinary observations of the noble and learned Lord to go forth to the public without remarking that he seemed to mistake the form for the substance of dignity. He must once more repeat, he had nothing whatever to do with what passed in their Lordships' House upon the occasion alluded to. When he heard, that the Judges were in attendance, he sent from the Court of Chancery to desire they would wait for a short time, and that his noble friend, the Lord Chief Justice of the King's Bench would be in attendance, intimating at the same time, that if his noble friend did not soon arrive, he would attend in person. Was it any fault of his, he begged to ask, that the Judges were impatient, and did not wait his arrival? The Judges were virtute officii attendants of that House; and if he chose, while the House was adjourned during pleasure, to sit in the Court of Chancery, it was their duty to wait until such time as he (the Lord Chancellor) came down and took his seat upon the Woolsack. He was the Speaker of their Lordships' House as well as Chancellor, and if, in the discharge of his duty in the latter capacity, he went from that House to the Court of Chancery, the Judges, knowing that their opinion was required by their Lordships, were bound, as their attendants, to await their pleasure, until such time as it was convenient for him to take his seat on the Woolsack. He did not, however, believe, that the Judges were impatient. He did not believe, that if any 602 noble Lord had taken the trouble to say, "The Chancellor will be here presently," they would have objected to await his arrival. He entirely acquitted them of that charge, because he was convinced they knew their duty too well to manifest impatience, even if they felt it. To return, however, to the speech of his noble and learned friend. He called upon their Lordships to mark how venturesome had been his noble and learned friend in his application of what had fallen from him respecting the judicial privileges of their Lordships' House. His noble and learned friend said, there were cases in which lay Lords had decided on questions of the greatest importance. He stated one case in particular, in which, upon the Chancellor and Judges differing upon a point of law involving a question of the greatest importance, the two lay Lords in attendance decided between them. "When doctors differ, who shall end the strife?" was a common inquiry enough; but in the case alluded to by the noble and learned Lord, it would appear, that two lay Lords decided upon a question of law between the twelve Judges of the land, and the Lord High Chancellor. It was, no doubt, very well, theoretically speaking, to clothe the lay Lords with the power of sitting on the Woolsack, under any circumstances; but, practically, it was clear that the Chancellor's appeal from the Judges to a lay Lord was not calculated to be productive of much advantage. The charge, however, in the present ca e was, that in the absence of the Deputy-speakers, a lay Lord sat on the Woolsack, heard the opinions of the Judges, and put the questions on those opinions. Now, if a lay Lord was competent to decide between the Chancellor and the Judges, surely he was competent to sit on the Woolsack to put the question to the Judges. With all the tenderness, therefore, that he felt for the privileges of the House, he did not think that those privileges would be consulted by the proposed Motion of his noble and learned friend.
§ Lord Wynford
observed, that it was due to himself to say, that he would have been present if he had had any idea of what was to take place. The constitutional principle was, that the Deputy-speakers should be appointed by the King, and it was only when they were not appointed by the King, that the House had a right to appoint them. He was far from 603 denying, that every Peer was competent to fill the judicial situation on the Woolsack; but it was well known, that it had been always the practice in that House to have, on such occasions, the assistance of Peers who had been in the legal profession. How, indeed, any decision upon such questions could be satisfactory, without the presence of a lawyer, he was at a loss to conceive.
§ The Duke of Wellington
said, that all that is noble and learned friend near him had stated was, that a Lord Chancellor ought to be on the Woolsack when the Judges delivered their opinions. No one could deny the great advantages which must result from having a Lord Chancellor present on such an occasion. He was quite certain that there was not one of their Lordships who did not agree with him in that opinion.
§ Earl Grey
rose only to state what he conceived to be the nature of the question. There could be no doubt that, on such an occasion as that adverted to, it was very advantageous that a judicial Peer should be present. That had been the wholesome practice of that House; and he was sure that his noble and learned friend on the Woolsack would be the last man to say, it was not a wholesome practice. But, acknowledging that such was the general practice, it was a very different thing to say, that in no case whatever should a judicial question be decided, unless a judicial Peer were on the Woolsack. It would surely be much better to leave the matter as it stood, than to affirm any such proposition.
The Duke of Cumberland
was persuaded, after what had just fallen from the noble Earl, that such an occurrence would never again take place.
The Earl of Shaftesbury
trusted the House would believe, that his absence on the occasion alluded to, was not the result of any disrespect or inattention to his duty, but from his having been led to expect that the Lord Chief Justice of the Court of King's Bench would be present. There had been occasions within every one's experience, on which a Judge, who was a commoner, having been made a Deputy-speaker of that House, it had been necessary, although in the presence of that Deputy-speaker, for a lay Lord to put the question to the Judges, and to take the opinion of the House.
§ Lord Denman
did not rise to prolong 604 the discussion; but because he felt it due to himself to state the cause of his not being in the House at the time alluded to. He was not aware, that he was expected to attend, until he was in the Court of King's Bench. He there received an earnest request to meet the other Judges in the House of Lords. It so happened, however, that a criminal case was trying before him. It was, of course, utterly impossible that, under such circumstances, a Jury and witnesses could be left by the Judge. He was, therefore, under the necessity of remaining in the Court till the trial was over, and he was then informed that the House of Lords had adjourned.
§ The Earl of Eldon
said, after what had fallen from several noble Lords, he should decline making his Motion.