THE LORDS AS THE SUPREME COURT OF APPEAL
1
The House of Lords is a judicial tribunal as well as a legislative
assembly. Sitting as the Supreme Court of Appeal, it gives to the
law, which it assists in passing, its final interpretation according
to the occasion and necessity of a particular case. 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 in the case is
conclusive, and can be set aside only by Act of Parliament.
The judicial sittings of the House of Lords are unaffected by the
adjournment, prorogation, or even the dissolution of Parliament. They
are held as frequently as the list of appeals awaiting trial during
term requires. The public are freely admitted. A visitor, moved solely
by curiosity, seldom finds his way there, and yet to see the highest
court of justice in the land at work is well worth while. With the
legislative House of Lords the public is quite familiar. Little is
generally known of the judicial House of Lords. The distinction between
the two does not appear, at times, to be clearly understood.
In its composition, its procedure, and its environment, the House of
Lords 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 Serjeant-at-Arms, bearing the Mace on his shoulder,
and by another officer of the House called the Purse-Bearer, carrying
a richly embroidered satchel, which is 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 of Lords is in being, whether for legislative
or judicial purposes. The House always opens its proceedings with
devotions. Prayers for Divine light and leading in the debates or
trials are said by the junior Bishop, or, in his absence, by the Lord
Chancellor. 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. Apart from the Lord Chancellor and the Law Lords,
the only persons present at devotions are the Serjeant-at-Arms, the
Purse-Bearer, 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 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 down from the Woolsack and takes his seat at a
temporary table, spread with a scarlet cloth, placed near to the Bar.
The other Law Lords sit on the front benches to the right and left of
him, each having a small movable table 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 about to be heard
respectively rely. Unlike the Lord Chancellor, the Law Lords are in
ordinary morning attire. How strange it seems that while in all the
lower Law Courts the judges are distinguished by the imposing trappings
of their office, here, in the Supreme Court of Appeal, the Lord
Chancellor alone wears wig and gown. It is another indication that what
we are witnessing is a sitting, not really of a Law Court, but of the
House of Lords. The forms and procedure of a legislative body, rather
than of a Law Court, are observed.
2
Every peer has the right to assist in the proceedings of the House
of Lords, whether it sits as a Court of Appeal or as a branch of the
Legislature. But in practice lay peers do not now interfere in the
appellate business of the House, and the hearing of appeals is left
entirely to what are called Law Lords. It was not always so. 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 have always constituted a House for judicial as well
as for legislative purposes. At that time the Court often consisted of
the Lord Chancellor, or one of his surviving predecessors in office,
and two lay peers. The decision in the appeal was, however, always left
to the Law Lord. The lay peers were simply dumb figures brought in to
form the quorum of three necessary to enable business to be transacted.
Several attempts were unsuccessfully made to remedy this state of
things before a solution was found. With a view to strengthening the
legal element in the House by making peers of ex-Judges of the High
Court, it happened in 1856 that Queen Victoria, on the advice of Lord
Palmerston’s Government, revived the right of the Crown to make life
peers which had been in abeyance for 400 years, and issued a patent
creating Sir James Parke, formerly a Baron of the Exchequer, Lord
Wensleydale “for and during the term of his natural life.” The Lords
were jealous of their hereditary rank and privileges. They disputed
the right of the Crown to create peerages for life, and contended that
hereditary peers only could have seats in the House. “The very essence
of Nobility,” said Lord Malmesbury, “is in the succession to the title
by posterity.”
The Law Lords joined in the protest. They regarded the relegating of a
law peerage to a lower or secondary class in dignity as a dishonour to
their profession. Lord Lyndhurst, a Law Lord then in his eighty-sixth
year, reappeared in the House of Lords to lead the opposition. “What
has the profession of the law done to merit this indignity?” he asked.
But it was on the ground of privilege that he mainly relied. He
insisted that as the Constitution, being unwritten, was one of usage,
no act of the prerogative which, like the creation of a peerage for
life, had fallen into complete disuse for centuries, could be revived
without the sanction of an Act of Parliament. Other constitutional
authorities argued that prerogatives of the Sovereign cannot become
obsolete by reason that they are not used, and are never abrogated
except by Act of Parliament. Finally, the peers passed a resolution
declaring that the patent in question conferred only the empty title of
“Lord,” without the right to sit and vote, and the Government, bowing
to the storm, made an hereditary peer of Baron Wensleydale, with the
customary right of succession to “heirs male of his body lawfully
begotten.”
In 1872 the constitution of the House of Lords as the final Court of
Appeal again became the subject of public discussion. Lord Hatherley,
the Lord Chancellor of Gladstone’s Administration, 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 Dominions--and to create, instead, an Imperial Court of
Appeal for the decision of all cases of the kind which went hitherto to
these separate and independent tribunals. The feeling among the Lords
was strongly against any invasion of their ancient right to revise on
appeal the judgments of the Courts of Law, and the Bill consequently
had to be withdrawn. In the following year Lord Selbourne--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. It proposed to substitute
for the duplicate machinery of the House of Lords and the Judicial
Committee of the Privy Council one Court of Appeal consisting of nine
judges, sitting in three divisions. Strange to say, the Bill this time
passed both Houses. The Lords had now surrendered by Act of Parliament
their judicial functions. However, they soon repented of their action,
and not too late to prevent the change taking effect. Parliament
restored what Parliament two years before had taken away.
3
In 1876 Lord Cairns--then the Lord Chancellor of Disraeli’s
Administration--also tried his hand at the reorganization of the
judicature system. The Appellate Jurisdiction Bill he brought in was
passed and came into operation. By it the judicial functions of the
Lords were preserved, and the House, as the Supreme Court of Appeal,
was made more efficient. Formerly the House, sitting as the Court of
Appeal, was often constituted, as we have seen, of one Law Lord and
two lay peers. The Act of 1876 provided that at least three Law Lords
shall be present at the hearing and determination of appeals. The Lord
Chancellor of England continued to be the president of the Court. Four
Lords of Appeal in Ordinary were specially created by the Act of 1876
to assist in the discharge of 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. The number of Lords
of Appeal in Ordinary was subsequently increased to six. It is now
generally accepted that one should represent Scottish interests,
another Irish interests, and the remaining four English interests.
Each has a salary of £6,000 a year, with a pension of £4,000 a year
on retirement, and the rank of a Baron. 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 peerage is but a
life one, and, accordingly, his title does not descend to his heir.
Besides these paid Law Lords, it was provided that hereditary peers who
had held high judicial offices should, ex officio, be entitled to take
part in the hearing of appeals. So by gradually established usage the
judicial sittings of the House of Lords are attended only by the Law
Lords. It would be lawful for lay peers to attend and to vote, but it
would not be constitutional.
The Appellate Jurisdiction Act of 1876, under which the offices of
Lords of Appeal in Ordinary were appointed, expressly provided that
each of the holders of these offices “shall during the time that he
continues in his office of Lord of Appeal in Ordinary, and no longer,
be entitled to a writ of summons to attend and to sit and vote in the
House of Lords.” In other words, a Lord of Appeal in Ordinary, on
ceasing to hold office, retained his title as a peer, but lost his
seat in the House of Lords. This was the position of a Lord of Appeal
in Ordinary until 1887, when another Appellate Jurisdiction Act was
passed, enacting, among other things, that a retired Lord of Appeal in
Ordinary is to continue to be a Member of the House of Lords for life.
It was under its provisions that Lord Russell of Killowen retained
his life peerage and a seat in the House of Lords after his promotion
from a Lordship of Appeal in Ordinary to the Lord Chief Justiceship.
By passing these two Acts, providing for the appointment of life peers
to discharge legislative as well as judicial functions, the House of
Lords surrendered their claim that none but hereditary peers should sit
and vote. Lords of Appeal in Ordinary sometimes speak in debates on
questions of party politics even at the ordinary meetings of the House.
4
An appeal may be made to the House of Lords from any order or judgment
in a civil suit of the Court of Appeal in England, the Court of Appeal
in Ireland, or the Court of Session in Scotland. 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--before it comes finally
before the House of Lords. If the litigant who has lost in the Court
of Appeal retains his faith in the justice of his cause, or is advised
by counsel that the decision is against the law, he can obtain from
the House of Lords a definite and conclusive judgment. But this final
pronouncement by the highest legal authorities in the land on the point
at issue is a very costly thing to obtain. The appellant who seeks to
have the verdict of the court below reversed must give as security for
costs--should the judgment of the House of Lords be against him--his
personal obligation to the amount of £500, and the bond of a surety for
£200. There are also the fees of the agents and counsel, which are very
high. The respondent, or the party in whose favour the Court of Appeal
has decided, is not required to give security for costs, but should he
be defeated in the House of Lords, he may be ordered to bear portion of
the expenses of the appellant.
Something else, besides giving security for costs, is required of the
appellant beforehand. An appeal to the House of Lords is brought by way
of petition. It must be addressed “To the Right Honourable the House
of Lords,” and set forth that it is “the humble petition and appeal”
of So-and-so, praying that the judgment in such-and-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. Its prayer
must be supported 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. Several 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. It is also
necessary to supply copies of the book bound in purple cloth for the
use of the Law Lords.
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 of Lords called the
Appeal Committee, which is appointed at the opening of every session to
relieve the House of the task of seeing that the Standing Orders have
been complied with by appellant, and of dealing with any objection
of the respondent to the appeal being heard, or with any application
for an extension of time. There is no bustle and no excitement. 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. Though lawyers who are Members of the House of
Commons are precluded from practising as counsel before any Committee
of the House of Commons, or from advising upon any Private Bill, or
other proceeding before Parliament, they may plead at the Bar of the
House of Lords in all judicial cases. 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 upon which he
relies. Then counsel on the other side leisurely and with similar
amplitude unfolds the case of his client. Their lordships listen
with unwearied patience and the closest attention to the speeches.
They interpose with questions only to seek information, or to make
intelligible a point laboured by counsel. They may even be heard
commenting on the obscurity or confusion of Acts of Parliament bearing
on the case which the House of Lords, and, perhaps their lordships
themselves, have had a share in framing. 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.
5
On the day of judgment the Law Lords are not disposed in quite the
same way as they were 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 it be agreed to--that
the appeal 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 reading from a manuscript, in like manner, reasons
justifying the decision to which he has come. All begin their addresses
with the invocation, “My Lords.” They are supposed to be not Judges
delivering judgment in a case, but Members of the House of Lords as a
legislative assembly stating in debate the reasons why the House should
take a particular 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, for example, 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 their lordships being equally divided
in opinion, the decision of the Court of Appeal stands affirmed, and
each party has to pay his own costs. With a view to avoiding such a
result it is usually arranged that the tribunal should be composed of
an uneven number of Law Lords. 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 save by Act of Parliament, for Parliament, as was once
said, can do anything, except make a man a woman or a woman a man.