wilfrid prest technical sense – was possible. While the lay majority might normally defer both to the opinions of those of their number who had once or indeed currently held high judicial office (who in the nineteenth century came to be known as the law lords), and to the views of the judiciary when they had been called for, such deference was not mandatory. In an interesting recent discussion of theDonaldson v Becket copyright case of the 1770s, it is claimed that ‘There are very few instances where the House defied the judges. From 1730 to 1800, inclusive, the judges offered advice in 83 appeals and writs of error. But in only four instances do the records show the House voting in a manner inconsistent with the views of the judges; and in three of those cases the vote also went against the majority of the law Lords.’32 This might seem a comforting reflection. Yet the fact remains that the overwhelming majority of cases which reached the Lords – an average of some forty a year over the course of the eighteenth century – were decided without the benefit of any judicial advice. (Further, so far as the growing numbers of appeals from the civilian-dominated Scottish Court of Sessions after 1707 were concerned, the judges of England seems unlikely as a general rule to have contributed much if any relevant learned expertise; Lord Erskine, a former leading barrister, politician and lord chancellor, stated in debate on a bill for revising the appellate jurisdiction in 1823 that “he might say, he knew something of the law, but of Scotch law he was as ignorant as a native of Mexico.”33) Not until 1844 did the House determine that henceforth only the law lords would have a vote on appeals brought before it.34 The previous lack of any such self-denying ordinance had left peers free to vote as might be dictated by their personal interests, or at best their assessment of each case as it was argued by counsel on either side, both viva voce at the bar of the House, and in the form of printed texts of appeals cases. 32 Gomez-Arostegui, H. Thomas 2014 p. 12. 33 Hansard, new ser., IX, column 1322: I owe this reference and much other assistance to an unpublished paper generously made available to me by Prof Henry Horwitz: The English, the Scots and the appellate jurisdiction of the House of Lords, 1660–1850. 34 Holdsworth, WilliamS 1956 p. 377. 189
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