COURTS OF APPEAL
THE COURT OF APPEAL--HOUSE OF LORDS--DIVISIONAL
COURT--JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
The Court of Appeal--the last resort except for occasional cases
which reach the House of Lords and Colonial appeals which go to the
Privy Council--is, perhaps, the most perfectly working tribunal for
the adjustment of conflicting rights which the wit of man in any age
has devised. It is divided into two parts of three judges each,
sitting simultaneously. The Lord Chancellor, the Chief Justice, or
the Master of the Rolls presides over the respective parts and two
associate Lord Justices of Appeal compose the court.
Printed briefs are not used, though the advantage of this omission
is not apparent. There is no bill of exceptions and the appeal is in
name, as well as in fact, a motion for a judgment the reverse of
that rendered below or, in the alternative, for a new trial, and
everything which transpired is open to review. Three barristers--the
leader, junior and devil--together with the solicitors, are usually
found on either side.
The leader for the appellant opens, stating the case with great
particularity, and reads from the evidence, documents and charge to
the jury at great length. Much time is thus spent because, for no
discoverable reason, but probably due to ancient custom and lack of
enterprise, the material is all in manuscript, often illegible and
with occasional errors in the copies of the Court and opposing
counsel. The result is tedious and prosy and an American auditor
gets an unfavorable impression at this stage of the argument; an
impression, however, which is later dispelled.
During the irksome opening, the court has been getting a grasp of
the case, as becomes apparent when the argumentative stage is
reached, for then there ensues a good tempered, courteous, informal
debate between the several gentlemen, comprising the court and
counsel. There is no "orating" and no declamation. The positions of
the opponents are stated rapidly and smoothly. Each, as enunciated,
is taken up by one or more members of the court and distinct
intimation given whether the court agrees with the speaker. In case
it does, he may pass on. On the other hand, deferential dissent may
warn him to strengthen his position, or a frank expression of doubt
may be accompanied by a friendly invitation to the other side to
contribute suggestions.
At the conclusion, judgment is rendered orally, in nine cases out of
ten, by the presiding Lord Justice, as the last speaker resumes his
seat. Then follow the opinions of the associate Lord Justices of
Appeal, concurring or dissenting, all expressed with the utmost
frankness and spontaneity. These are taken down stenographically,
and, after revision, sometimes by the judge himself, find their way
into the books to become authorities. Occasionally a "considered
judgment" is reserved to be delivered within two or three days.
The contrast presented by these methods (for the system is not
essentially different) to the average American appeal is very great.
In America, only the ablest men know by a kind of intuition upon
what points their cases will turn, and one often hears a more or
less stereotyped speech delivered to a court sitting like silent
images, without the slightest intimation to the speaker whether he
is wasting effort upon conceded points, or slighting those upon
which he may discover by the written opinion--delivered months
afterwards--he has won or lost.
Sometimes these friendly debates in an English court of appeal are
witty, and they are often rather amusing. In a case recently argued,
the defendant, a real estate owner, appealed from a judgment for
£300. against him for wrongfully evicting his tenant, the plaintiff,
and putting his sick wife and furniture out on the sidewalk in the
rain. There was not much to be said in his favor upon the merits of
his act, but his counsel argued that plaintiff's advocate had used
inflammatory language in his speech to the jury.
The judgment was immediately affirmed, the Lord Chancellor
delivering an opinion to the effect that the control of the language
used was a matter of discretion for the court below and could not be
examined by the appellate court. Both of the associate Lord Justices
concurred, but one proceeded to give quite different reasons. With
the preliminary words: "Speaking only for myself, but not for his
Lordship," and with a slight inclination of his head towards the
Lord Chancellor, he said he was for affirming for an entirely
different reason--not because he could not examine the language used
below, but rather that he had done so. He then proceeded to rehearse
the brutal conduct of the defendant, and wound up by declaring, "If
it had been my sick wife and my furniture which had been set out in
the rain under the circumstances described, I do not think the
English vocabulary contains the language I should wish my counsel to
use in addressing the jury." This was received, as is not uncommon
in England, but unheard of in America, with frequent laughter and
even subdued applause, and the "London _Times_" in its regular legal
column the next day, reported the opinions and indicated the
"laughter" and "loud laughter" in brackets. The opinions in the
books, after being toned down by the reporter, often bear but faint
resemblance to the actual utterances.
In the House of Lords appeals are equally informal and colloquial,
an impression that is heightened by the absence of wigs and gowns,
so far as the bench is concerned, and by the very casual manner in
which the half dozen gentlemen composing the court are seated. The
house itself is a large, oblong chamber with steep tiers of seats,
upholstered in red leather, which rise high up the side walls and
upon which the peers sit when legislating, but which are, of course,
empty when the court only sit. At the far end is an unoccupied
throne, while, at the near end, raised above the floor, is a kind of
box from which counsel address the court. It is much like the rear
platform of one of our street cars. Counsel, of course, are in wig
and gown, and if K. C.'s, in full bottomed wigs, but one may
occasionally see a litigant actually arguing his own case _in
propria persona_. On either side of the counsel's box is a very
narrow standing place for reporters and the public.
The court, consisting of the Lord Chancellor in gown and full
bottomed wig, and perhaps of five judges, in ordinary clothing, sit
at the floor level, and therefore considerably lower than counsel in
the elevated box. They are not placed in a row nor behind any bench
or table. On the contrary, though the presiding Lord Chancellor is
vis-a-vis to the counsel box, the others sit where they please.
Sometimes this is on the front row of benches and sometimes on one
of the higher tiers, with a foot propped up, perhaps, on the bench
in front, and their thumbs hitched to the armholes of their
waist-coats, and, necessarily, with their sides to the speaker. The
members of the court often have portable tables in front of them,
piled with books and papers. During the course of an argument they
constantly debate with each other across the House, or walk over to
one of their colleagues with some document or a book and talk of the
case audibly and perfectly freely. One may hear one of them, in a
salt and pepper suit, call across the floor to another Lord of
Appeal who has interrupted a barrister's argument, "I say, can't you
give the man a chance to say what he's got to say?"
These little circumstances show that judges and counsel in the
appellate courts of England behave as natural men without the
slightest restraint, formality or self-consciousness. Arguments are
delivered with surprising rapidity of utterance, in a conversational
tone, and with a crispness of articulation altogether delightful to
the ear. The drawling style of speech sometimes heard on the stage
as typical of a certain kind of Englishman, seems to have
disappeared in real life; it certainly is not to be found in the
Courts. An American stenographer reporting an English argument,
would have to increase his accustomed speed at least one-third.
The methods of the Divisional Court are the same as those of the
Court of Appeal, but the low limit of its jurisdiction renders it of
little interest.
The Judicial Committee of the Privy Council--or, as it is
colloquially described by the lawyers, "The Privy Council"--is
doubtless the most interesting court in England because of the
variety of the questions there considered and owing to the fact
that, geographically, the litigations originate in nearly every
quarter of the civilized world, for, as noted above, this is the
court of last resort for all of the British Colonies. It should not
be confused with the Privy Council itself--a political adviser of
the Crown--for the Judicial Committee's functions are purely
judicial and its personnel consists of the Lord Chancellor and the
other Law Lords, a few paid members, and some Ex-Colonial Judges.
Historically, indeed, it was but a sub-committee of the Privy
Council, which circumstance gives the Court its name and explains
why its judgments always conclude with the phrase that the Committee
"humbly advises His Majesty" to affirm or reverse the judgment
rendered in the Colony, instead of pronouncing the conclusion in
direct language, as do other courts.
This extraordinary body sits in a large second story chamber, not in
the least resembling a court room, of a building in Downing Street,
and rarely is there any audience other than the professional men
whose business takes them there.
Of course, most of the Colonies are equipped with their own court of
appeals--usually called the Supreme Court--but, nevertheless, an
appeal lies from their decisions to the Privy Council in certain
circumstances, although to define exactly the scope of this
jurisdiction would be too technical for present purposes.
Here are to be found, arguing their cases, lawyers from Colonies in
every corner of the globe in some of which the division of the
profession into barristers and solicitors hardly exists, or at
least, the line separating them is quite hazy--but they must all
appear in wig and gown.
Bearing in mind the fact that the Colonies of Great Britain are
scattered over the whole world and that it has always been the
policy, so far as possible, to accept the existing law of each and
graft it upon the English law system, the diversity and broadness of
this court's deliberations may be imagined.
The succession to an Indian Principality, to be determined under the
ancient law of that far Eastern land, will be followed by a question
of the legality of the adoption of a child in South Africa, to be
considered under the rules of Dutch law. The next case will,
perhaps, involve the effect upon an area much greater than that of
all England, of the diversion of a river in the Canadian North-West.
And the court may next turn its attention to the problem whether the
widow of a Scotchman who left two wills--one intended to operate at
home and the other to take effect in Australia--can take her thirds
against the will in Scotland but accept the benefits of the other
will as to property in Australia.
The Court of Appeal and the House of Lords deal with domestic
matters of the little Island, which, however important the
principles involved and however critical the issues to the litigants
themselves, seem almost petty in comparison with the broad field of
the Privy Council. Little as the average man knows of it, and rarely
as it figures in news of the day, no American lawyer can fail to
perceive in this great court something of the tremendous scope of
his own Supreme Court of the United States, to which tribunal only
is the Privy Council secondary.