THE HOUSE OF LORDS AS A COURT OF APPEAL. THE
proceedings in the case of O'CONNELL place in a strong light the defects of the House of Lords as a Court of Appeal.
The Lay Lords declined voting : the case was too exclusively legal for them to give an opinion. Fourteen Judges delivered opinions on the occasion ; five of them members of the House of Peers, and nine members of the Courts at Westminster, not Peers. It is no disrespect to the Law Lords to say that the opinion of any one of the Westminster Judges is, as a legal opinion, equal in weight to any of theirs. If there is any difference, it is in favour of the opinions of the Westminster Judges. The case was a political one : the Westminster Judges are by their position less exposed to political bias than the Peers, whether acting or ex Judges, who are actually political characters. Yet, by the legal fiction that the decision is the decision of the House of Peers, not of the Judges, it is brought about that five Judges outvote nine; that although seven non-political Judges are for affirming the sentence of the inferior Court and only two for re- versing it, it is reversed by a vote of three political Judges against two political Judges—three Whig Judges voting against the Chancel& and the untchigged Lord BROUGHAM. The decision in such a case, be it right or be it wrong, cannot settle what the law is. Men cannot have confidence in a decision which affirms that to be the law which a majority of the Judges consulted have declared not to be the law. They will say that it was needless to take the opinion of the Peers, who are not lawyers, seeing that it is allowed on all bands they were incompetent to form one. They will say that if the decision was to be left to the Judges, then the whole of the Judges ought to have had votes. In short, they will say that the appellate jurisdiction ought to be transferred from the Peers, who do not understand law, to the Judges, who do.
In the present instance, the Lay Peers have, with commendable modesty, abstained from meddling with a business they do not understand : but their declining to act was a mere courtesy ; they took good care that it should be with express reservation of their right. Who would be guarantee that the Peers will always act thus discreetly ? Even now, had the responsibility been a trifle less ularming—had the stake played for been a trifle more important— had the party-spirit of the Peers been a trifle more excited—had Ministers been a trifle less scrupulous or cautious—it would be rash to affirm that the existing Peerage would have maintained its laudable silence. So long as the appellate jurisdiction remain's vested in the House of Lords, it may depend upon the character of Individual Peers—upon the mood in which these Peers are at the moment—whether a party accused of political offences shall be judged by men who have cultivated the lawyer's habit of im- partiality, or by a majority of hostile political partisans.
The mischief that may be done by the House of Lords in cases of private rights is perhaps even greater than the mischief it can do in political cases. There is no lack of charity in believing, that the diffidence of the Lay Peers in O'CONNELL'S case was owing less to distrust of their own judgment than to apprehension of the consequences which might follow their decision. In ques- tions of mere private rights, such apprehensions can only exist, if at all, to a very limited extent. There is least certainty of the noninterference of the Lay Peers precisely in those cases where they can do most harm. Political appeals are of rare occurrence ; but civil appeals, involving property and privileges to an immense amount, are yearly submitted to the House of Lords. Political appeals in nine cases out of ten relate to broad and general prin- ciples on which the common sense of well-educated men may safely decide ; but civil appeals in ninety-nine cases out of a hundred re- late to technical points of law. The only arguments advanced in support of the anomalous appel- late jurisdiction of the Peers are—that a decision of the House of Lords carries more weight than a decision of a common Judge or Judges could; and that it is the constitutional practice of the House. It may be doubted whether, for more than a century, the decisions.ofthe House of Lords have not owed all the weight theypos-
sessed to the character of the Chancellor who presided at the time, and really formed, as he pronounced, the judgment. At all events, it cannot henceforth be expected that the decision of the real Judge will receive additional weight from being called the decision of a body who have so solemnly and publicly declared their incapacity to act as Judges. On the contrary, there may be on some occasions an indisposition to appeal to the real Judge, from a fear that the Lay Lords may assert their power to act along with him. As to the privilege of the House of Lords, there ap- pears to be little wisdom in pertinaciously retaining a privilege which they confess it would be unwise and unjust in them to exercise. The appellate jurisdiction never can command respect and con- fidence until it be vested in non-political Judges, and organized in such a manner as to preclude the possibility of a minority of the Judges outvoting a majority.
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