CONSERVATIVENESS OF THE SUPREME COURT OF APPEAL. THE opinion that
the House of Lords must necessarily have a conservative leaning, rests upon the belief, that, the wealth of
its members and their exclusive privileges being endangered in un- settled and changeful times, they have a personal interest in up- holding existing laws and old institutions—in not removing the old landmarks that their fathers have set. But the proceedings in the O'Connell. case showed, that the Peers really under the influence of this bias take no part in its judicial decisions. When the House of Lords sits as a Court of Appeal, the wealthy and long-descended Peers—conservative from the necessity of their position—absent themselves, or merely look on. The work is done by the adven- turers, (in no disrespectful sense of the word,) who have elbowed their way in among the Peers. These men, too, are liable to their bias; but it it the bias of lawyers, who have been all their lives the advocates of a party. Lawyers—Judges—are not raised to the 11..e of Lords for their legal abilities and knowledge only : Judges who have risen to eminence in their profession solely by legal abilities and knowleate rarely consent to be raised to the House of Lords. The lawyer who is z. politician as well as a lawyer is the material out of which Chancellors and other Law Lords are made. Be may be Whig or he may be Tory, but his position has been attained by services to a party ; and even after he has made him- self independent in worldly circumstances, the habits of thought and action contracted during long years of service are not easily thrown off Be he Whig or be he Tory, his conservatism is subordinate to other biases. He may even quarrel with his party without being able to shake of the character of a partisan. His pride lies in carrying a point; and to do this he makes little of an old institn- Sion that lies in his way. For an institution to deserve the name of conservative, it is not enough that it give power to a man or to men of conservative opi- nions and predilections. Conservative, in its wide and true mean- ing, implies not the preservation of this or that law or institution, but the giving permanence and stability to a government and to the great mass of its forms. What is really conservative in a state is that which opposes an obstacle to vacillating policy and legisla- tion—to hasty change. This can only be done by a power which exists in a measure independent of the law—which helps to make at the same time that it receives the law. Wealth is conserva- tive; the prestige of birth is conservative; religion is in general conservative. A wealthy or a high-born individual may be, from taste or conviction, an innovater; nay, a daring priest has been known to throw himself into the innovating party ; and there have been few more arrant anti-conservatives than FREDERICK the Great : but wealth and birth give power in all countries, and power derived from these sources is, in the rule, conservative—exerted in sup- port of the permanence and stability of social arrangements. Such power cannot safely be delegated. The despot who resigns the business of state entirely to a vizier, is already more than half de- throned : the aristocracy which allows lawyers and other serviceable persons to discharge its functions under the sanction of its name, has denuded itself of much of its conservative influence. Not only do the delegates act under the influence of motives different from its own, but the transference of power is seen through, and men have little respect for a mere personation.
It has been well remarked by COLERIDGE in his notes on BLACK.. mess, that in constituting the House of Lords a Court of Ap- peal, "authority was wanted more than new light." No man thought the opinion of the Chancellor better than the opinion of the Judges at Westminster ; nor, indeed, was even the Chancellor necessarily a lawyer, till a comparatively recent period. The doc- trine of the noninterference of Lay Lords would have worked finely in a House where there were no Law Lords ! The very circum- stance of taking the Judges' opinions shows the understanding that the Lay Lords are to vote • for the Law Lords do not need the aid of their opinions. The House of Lords is—or, since the de- cision of last week in O'Coneeee's case, we may say was—the last surviving specimen of the original English court of justice. The King and his Peers, the Lord of the Manor and his tenants, were the judges : the professional lawyer was merely consulted. Among other changes in the constitution of society, the judicial authority has been transferred to professional judges ; the lawyer who advised the judges has become the judge. The House of Lords long held out against this innovation ; but it being now confessed that de facto the Peers are in the habit of not acting in judicial proceedings—of leaving them to the management of the professional lawyers among them—it cannot be long till this court too is openly and avowedly composed of professional judges alone.
There will be no loss in this, and there will be some gain. Much might be said in favour of making the House of Lords the Court of Appeal. The Peers have been accustomed from boyhood to look forward to a participation in public business as a badge of their rank; with the average education of English gentlemen, their sense of honour is kept acute by the consciousness of ever acting in the public eye ; by their wealth they are raised above suspicion of in- terested motives. Allowing for individual exceptions, this is their character as a body. It was natural enough for men to say—" In the comparatively few cases in which the decision of the Judges in the Supreme Courts is not acquiesced in, little is to be gained by referring the question to another set of lawyers: it is better to cut the Gordian knot of legal subtilties by the decision of unprofes- sional men of sound judgment and unquestioned integrity. Let them have the advice of the Judges to give them a general notion of the law of the case, and to warn them against any serious de- viation from ordinary forms; and let their common sense do the rest." As long as the Lay Lords actually sat in judgment, such a tribunal was perhaps as good as any. But they have ceased to do so. The judgment is now really pronounced by pro- fessional lawyers—under the full influence of the peculiar habits of the lawyer-mind, and freed from the check of public opinion, since any blunder or injustice they may commit will be attributed not to them, but to the House of Lords, in whose name they decide. It is in vain to struggle against the innovations of time. However well satisfied with the theory of appellate jurisdiction in the House of Lords—with that jurisdiction as it was once actually exercised— it has ceased to be a reality ; and the hope to render it a reality again were as vain as to think of bringing back the time when the Sovereign sat in person in the Court of King's Bench. And since the customs and habits of thought of the age have rendered such a tribunal impossible, it will be better for all parties that another be substituted, composed of professional judges, instead of allowing professional judges to pronounce judgments screened from responsibility by the name of the House of Lords.
In the mean time, that Conservative House, by the contumely cast upon the Supreme Court in Ireland, on the Judges at West- minster, and on its own non-legal members, has given the greatest anti-conservative shock to law and its administration that has been witnessed in our day.
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