POLITICAL AND COMMERCIAL AFFAIRS

The Lords as the Supreme Court of Appeal

MICHAEL MACDONAGH IN THE MONTHLY REVIEW February 1 1907
POLITICAL AND COMMERCIAL AFFAIRS

The Lords as the Supreme Court of Appeal

MICHAEL MACDONAGH IN THE MONTHLY REVIEW February 1 1907

The Lords as the Supreme Court of Appeal

POLITICAL AND COMMERCIAL AFFAIRS

BY MICHAEL MACDONAGH IN THE MONTHLY REVIEW

MICHAEL MACDONAGH

The work of the House of Lords as a legislative assembly is widely known. This body also acts as the Supreme Court of Appeal for the British Realm, but few are familiar with its work while acting in its appellate capacity. Mr. MacDonagh outlines a session of this court.

THE House of Lords is not only a deliberative and legislative assembly. It is also the supreme Appeal Court of this realm. As such it is the ultimate resort of the suitor who thinks an injustice has been done him by a decision of any of the law courts. Its judgment on the question at issue is final, and can be set aside only by Act of Parliament.

The sittings of the House of Lords in its appellate capacity are absolutely independent of the adjournment, prorogation, or even the dissolution of Parliament. The House sits as it pleases according to its list of appeals during term. The public are freely admitted to the House. It is seldom that a visitor, inspired solely by curiosity, finds his way there, and yet to see a sitting of the highest court of justice in the land is an interesting experience. In its composition, its procedure, and its environment it is utterly unlike any other court. The Lord Chancellor enters the chamber, wearing his long flowing robe and full-bottomed

wig. He is preceded by the Sergeantat-arms, bearing the Mace on his shoulder, and by another functional'}' called the Purse-bearer, carrying a gorgeously embroidered satchel supposed to hold the great seal, of which the Chancellor is the Lord Keeper. The other Law Lords are already in their places. The Lord Chancellor takes his seat on the Woolsack, and the Mace is placed behind him. The presence of the Mace indicates that the House is sitting. The House of Lords always opens its proceedings with devotions. When it meets for' legislative business, prayers for Divine light and leading in the deliberations are recited by one of^ the Bishops. Similar invocations are now offered up by the Lord Chancellor, and the responses are given by the other Law Lords.

But the doors of the Chamber have not yet been opened to the litigants and their counsel. Besides the Lord Chancellor and the Law Lords the only persons present at devotions are the Sergeant-at-arms, the Pursebearer, one of the clerks of the

House, who takes minutes of the proceedings of the court, its orders and judgments, and the Yeoman Usher of the Black Rod. . After prayers the clerk reads the title of the first appeal case on the list. “Call in the parties in the case,” says the Lord Chancellor to Black Rod, and thereupon the doors of the Chamber are thrown open. Immediately inside the portals is a low oak partition or barrier running across the Chamber. This is the famous Bar. Here the lawyers, litigants, and general public assemble. In the centre of the barrier there is a sort of pen, in which the Speaker stands when the Commons are summoned by Black Rod to the House of Lords, and within it counsel for both appellant and respondent, with their solicitors, are accommodated when the House sits as the Court of Appeal. The Lord Chancellor comes dowrn from the Woolsack and takes his seat at a temporary table, spread with a scarlet cloth, placed near the Bar. The other Law Lords sit on the front benches to the right and left of the Bar, each with a small moveable table before him provided with pens, ink and paper, and a copy of a book, purple-bound, containing the statements of the case on which the rival parties in the appeal respectively rely. Unlike the Lord Chancellor, the Law Lords are in ordinary morning attire. It seems strange that while in all the lower Courts the judges wear the imposing trappings of their office, here, in the Supreme Court of Appeal, the Lord Chancellor alone sits in wig and gown. The reason is that despite a statute regulating the formation and practice of the court, it remains, at least in theory, no court at all, but one of the Houses of Legislature sitting in a judicial capacity. It will

be observed, too, that the forms and procedure of a legislative body, rather than a court, are observed throughout the proceedings.

Every peer has the right to take part in the proceedings of the House of Lords, whether it sits as a final Court of Appeal or as. a branch of the Legislature. But in practice lay peers never interfere in the appellate jurisdiction of the House, and the hearing of appeals is left entirely to the Law Lords. By an act passed in 1824 every lay peer was bound to attend the House when it sat as a Court of Appeal, at least once in a session, under a penalty of £50. Three lords constitute a house for judicial as well as for legislative purposes, and the object of the statute in compelling the attendance of lay peers in rotation was to secure a quorum for appellate business. The court often consisted of the Lord Chancellor, or one of his surviving predecessors in office, and two lay peers, but the decision in the appeal was left to the Law Lord. The lay peers were simply dumb figures brought in to comply with the Standing Order, which requires a quorum of three before business can be proceeded with. Several unsuccessful attempts were made to remedy this state of things before a satisfactory solution was found. With a view to strengthening'the legal element in the House, by increasing the number of lords who had been judges of the High Court, the Queen, on the advice of Lord Palmerston’s Government in 1856, revived the right of the Crown to make life peers, which had been in abeyance for four hundred years and issued a patent creating Sir James Parke, formerly a Baron of the Exchequer, Lord Wenslevdale “for and during the term of his natural life.” The Lords

were jealous of their rank and privileges as an hereditary order. “The very essence of nobility,” said Lord Malmesbury on a subsequent occasion “is in the succession of the title to posterity.” They disputed the right of the Crown to create peerages for life. The question was the subject of many stormy debates in the UpperChamber. Finally the peers passed a resolution that the patent conferred only the empty title of “lord,” without the right to sit and vote in the House of Lords, and the Government, bowing to the decision, created the peerage afresh by making Baron Wensleydale an hereditary peer, with the customary right of succession to heirs male of his body lawfully begotten.

Sixteen years elapsed before the constitution of the House of Lords as the final Court of Appeal again became the subject of public discussion. In 1872 Lord Hatherley, the Lord Chancellor of Gladstone’s ad. ministration, brought in a bill to abolish the appellate jurisdiction both of the House of Lords and of the Judicial Committee of the Privy Council—which hears appeals from India and the Colonies—and to create instead an Imperial Supreme Court of Appeal for the decision of all cases which went hitherto to these separate and independent tribunals. The feeling among the Lords was strongly against any invasion of their ancient privilege to revise on appeal the judgments of the Courts of Law, and the bill consequently had to be withdrawn. In the following year Lord Selborne—who had succeeded to the Woolsack in the same administration on the resignation of Lord Hatherley owing to failing eyesight—introduced another Supreme Court of Judicature Bill. This measure also dealt with the question of appellate

jurisdiction. It proposed to substitute for the duplicate machinery of Lords and Judicial Committee one Court of Appeal, consisting of nine judges, sitting in three divisions. The bill passed both Houses. The Lords had now surrendered by Act of Parliament their ancient jurisdiction over appeals. However, they soon repented of their action, and not too late to prevent the constitution of the Supreme Court of Appeal. The new court was to deal only with English appeals, Irish and Scottish appeals being still reserved to the House of Lords. Before the date on which the act was to come into operation so great an outcry was raised against the measure by Scotland and Ireland, backed by the House of Lords, that it was never carried into effect. In 1876 Lord Cairns—then the Lord Chancellor of Disraeli’s administration—also tried his hand at the reorganization of our judicature system. He brought in another measure, entitled the Appellate Jurisdiction Bill, which passed and came into operation. By this statute the appellate jurisdiction of the Lords was preserved,’ and the House as the Court of Appeal made more efficient.

Formerly the House, sitting as a Court of Appeal, was often constituted, as we have seen, of one Law Lord and two lay peers. The act of 187(6 provides that at least three Law Lords shall be present at the hearing and determination of appeals. Law Lords consist of the Lord Chancellor of Great Britain, judges who are peers of the realm, peers who have held high judicial office, and four Lords of Appeal in Ordinary. The Lords of Appeal in Ordinary were specially created by the act of 1876 to assist the House in the discharge of its judicial business. The qualification required of a

Lord of Appeal in Ordinary is that he has been a Judge of the Superior Courts for not less than two years, or that for not less than fifteen years he has been a practising barrister in England or Ireland, or a practising advocate in Scotland. He has a salary of £6,000 a year, with a pension of £4,000 a year on retirement, and the rank of a Baron for life. Though a Lord of Appeal in Ordinary receives a writ of summons to sit and vote as a peer in the House of* Lords as a branch of the Legislature, his title does not descend to his heir.

An appeal may be made to the House of Lords from any order or judgment of the Court of Appeal in England, the Court of Appeal in Ireland, or the Court of Session, in Scotland, in a civil suit. Before the case has reached any of these appeal courts it must, of course, have been heard and decided in a lower tribunal, so that the question at issue has been the subject of a judgment in at least two courts—the court in which the suit originated and the Court of Appeal—ere it comes finally before the House of Lords. If the party who has lost in the Court of Appeal has his faith in the justice of his cause still unshaken, or is advised by his counsel that the decision of the court is against the law, he may obtain from the House of Lords a definite, fixed and final judgment on the legal point at issue. But this unquestionable interpretation of the law, by the highest legal luminaries of the land, is a very costly proceeding. The appellant who seeks to have the decision of the court below —that is, the Court of Appeal—reversed or varied must give, as security for costs—should the judgment of the House be against him—his personal obligation to the amount of

£500 and the bond of a surety for £200. There are also, of course, the fees of the agents and counsel, which are enormous. The respondent, or the party in whose favor the Court of Appeal has decided, is not required to give security for costs, but should the House reverse the decision he may be required to bear portion of the expenses of the appellant. Giving security for costs is now, however, the only thing preliminarily required of the appellant. An appeal to the House of Lords is brought by way of petition. It must be addressed “To the Right Honorable the House of Lords,” and set forth that it is “the humble petition and appeal” of So-and-so, praying that the judgment in suchand-such a case “may be reviewed before His Majesty the King in his Court of Parliament, in order that the said court may determine what of right and according to the law and custom of this realm ought to be done in the subject-matter of such appeal.” The petition must be printed on parchment. The reasonableness of its prayer must be certified to by two counsel, who have appeared for the appellant in the Court of Appeal or propose to plead for him before the House of Lords. Forty copies of the counter cases of the disputants, printed in clear type on quarto sheets, and bound in book form, at the expense of the appellant' must be lodged with the petition in the office of the House of Lords. It is also required that ten copies of the book are to be bound in purple cloth for the use of the Law Lords.

It is a most grave and solemn tribunal, the House of Lords sitting for appellate business. The case opens at once. No preliminary objections of a technical nature or applications for adjournment are allowed. Such

points are previously dealt with by a Committee of the House called the Appeal Committee, which is appointed at the opening of every session to relieve the House, sitting as a Court of Appeal, of the work of seeing that the Standing Orders have been complied with by appellants, and of dealing with respondents’ objections to the appeal or applications for an extension of time. There is no bustle and no excitement. Dignity and decorum reign supreme. The methods of the court are austerely judicial. No witnesses are examined. It is all argument. Brow-beating is therefore unknown. Two counsel are heard on each side. The lawyer who opens the case stands at the centre of the Bar, and in a placid conversational style states at great length the facts and the points of law on which he relies. Then counsel on the other side leisurely and with similar amplitude unfolds the case of his client. The Court listens with unwearied patience and the closest attention to the apparently interminable addresses of the lawyers. Judgment is not, as a rule, delivered at the close of the arguments. Knotty legal problems, or delicate and difficult points of equity, are always involved in these appeals, and therefore their lordships allow themselves plenty of time for the consideration of their judgment.

On the day of judgment the House does not display quite the same aspect that it wore on the day the arguments were heard. The Law Lords are again sitting on the front benches close to the Bar, with their little tables before them ; but the Lord Chancellor is now on the Woolsack. Rising from his seat, the Lord Chancellor reads his judgment from a manuscript, and concludes by moving that the order or verdict appealed

from be affirmed, altered, or reversed, as the case may be. The Lord Chancellor is followed by the other Law Lords, in the order of precedence, each in like manner reading from a manuscript reasons justifying the decision at which he has arrived. All begin their addresses with the invocation, “My Lords.” They are supposed to be not judges delivering judgment in a case, but members of a legislative assembly stating in debate the reasons why the House should take a certain course in regard to the question before it.

When all the Law Lords have spoken, the question at issue is put in exactly the same, form as if the House were sitting for the purposes of legislation. Should the Lord Chancellor have arrived at a decision hostile to the appellant, he says : “The question is that this appeal be dismissed. As many as are of that opinion will say Content ; of the contrary opinion, Not-Content” ; and then he adds, “The Contents have it.” The House is usually unanimous in its decisions. But should there be a conflict of opinion among the Law Lords, judgment is pronounced in accordance with the views of the majority. It is possible however, that there may not be a majority one way or the other. In the event of a tie, or an equal division between the Law Lords, the decision of the Court of Appeal stands, and each party have to pay their own costs. The Lord Chancellor, in cases where the issue has been decided unanimously or by a majority, finally declares : “The

judgment of the House is that this appeal be dismissed, and that the appellant do pay the respondent’s costs in the appeal.” The decision thus given is the judgment of the House of Lords, and it is entered as

such in the Journals of the House. It does not make the law, nor alter the law. It interprets and fixes the law. What it says is the last word on the tangled legal point at issue. The fiat is final and irrevocable. Its

definition of the law can be altered, amended, or added to only by Act of Parliament, for Parliament, as Lord Palmerston once put it, can do anything except make a man a woman or a woman a man.