CHAPTER IX

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.

A Philadelphia Lawyer in the London Courts · 第 9 / 15 章