Encyclopaedia Britannica, 11th Edition, "Apollodorus" to "Aral" / Volume 2, Slice 3

by Various

The court of appeal may make any order which it deems just as to the costs of the whole or any part of an appeal, except possibly in the case of certain appeals in matters on the crown side of the High Court, as to which some doubt still exists. In practice the costs follow the event, unless the court in a particular case makes an order to the contrary.

A decision of the court of appeal is final in appeals from the High Court in bankruptcy, unless leave be given to appeal to the House of Lords (§ 104, Bankruptcy Act 1883), and in divorce appeals, except where the decision either is upon the grant or refusal of a decree for dissolution or nullity of marriage, or for a declaration of legitimacy, or is upon any question of law on which the court gives leave to appeal (Supreme Court of Judicature Act 1881, § 9); but no further appeal to the House of Lords lies, even with leave of the court of appeal, on appeals from the High Court sitting as a court of appeal from county courts in bankruptcy. With these exceptions there is now a right of appeal from every order of the court of appeal to the House of Lords.

The House of Lords.—The House of Lords has for centuries been the court of last resort, and is still the final court of appeal from the chief courts in the United Kingdom. The origin of the appellate jurisdiction of the House of Lords was undoubtedly of that partly feudal and partly popular character already alluded to, which made the suitor seek from the high court of parliament the justice denied elsewhere in the baronial courts or by the king’s judges. The lords exercised the mixed function of jurymen and judges, and, as in judgments on impeachment, might be influenced by private or party considerations, debating and dividing on the question before the House. A revolution was silently accomplished, however, by which the function of reviewing the decisions of the courts fell entirely to the lawyers raised to the peerage, while the unprofessional lords only attended to give the sanction of a quorum to the proceedings, and the House has always had the right to invoke the assistance of the judges of the superior courts to advise on the questions of law raised by an appeal. The letters and memoirs, so late as Queen Anne’s reign, show that party or personal influence and persuasion were employed to procure votes on appeals, as they have been in later times on railway or other local bills. The last instance probably in which a strong division of opinion was manifested among the unprofessional lords was the celebrated Douglas cause in 1769, when the House was addressed by the dukes of Newcastle and Bedford, but was led by the authoritative opinion of Lord Mansfield on the effect of the evidence—an opinion which was treated rather as that of a political partisan than of a judge. The case of Daniel O’Connell and others, brought up on writ of error from the queen’s bench in Ireland in 1844, may be said to have finally established the precedent that the judgments of the House of Lords were to be given solely by the law lords. On that occasion there was a difference of opinion among the law lords themselves. The judgment of the majority of the House was strongly against the political feeling of the government and of the peers as a body, while the law lords who carried the decision had been appointed by previous governments opposed in politics to the existing cabinet. But all these temptations to a party vote by the unprofessional members were resisted.

By § 20 of the act of 1873, the appellate jurisdiction of the House of Lords (so far as it affects England) was abolished, but this section was repealed by the Appellate Jurisdiction Act 1876. Under that act and an amending act of 1887, the appellate business of the House of Lords is conducted solely by the law lords, though lay peers may still sit (Bradlaugh v. Clarke, 1882, 8 App. Cas. 354). No appeal may be heard or determined except in the presence of not less than three of the following persons:—(1) the lord chancellor; (2) the lords of appeal, four of whom are appointed under the act from among persons who hold, or have held, high judicial office, or, at the date of appointment, have been in practice for not less than fifteen years as barristers in England or Ireland, or as advocates in Scotland; (3) such peers of parliament as hold, or have held, high judicial office. By “high judicial office” is meant the office of lord chancellor of Great Britain or Ireland, lord of appeal in ordinary, paid judge of the judicial committee or member of that committee, or judge of one of the superior courts of Great Britain or Ireland.

An appeal lies to the House of Lords (1) from any order or judgment of the court of appeal in England except as above stated; (2) from a judgment or order of any court in Scotland or Ireland from which error or an appeal to the House of Lords lay by common law or statute immediately before the 1st of November 1876. No appeals are heard from the decision of courts in criminal cases. The House of Lords has an indirect power by standing orders to admit appeals from Scotland or Ireland which under former law or practice could not be admitted (Appellate Jurisdiction Act 1876, § 12). The procedure on appeals is regulated by standing orders of the House. The proceedings are commenced by petition of appeal, which must be lodged with the clerk of the parliaments within one year from the date of the last judgment it appealed from. Security for costs (£200) must be given by bond or lodgment of the money, unless dispensed with by the House on the ground of poverty (act of 1893). Each party lodges a printed case signed and certified by counsel, containing a resumé of the matters to be discussed and of the contentions for or against the allowance of the appeal. The hearing is before three or more law lords, who may call in nautical assessors in admiralty cases (acts of 1893 and 1894). It is not public in the full sense of the term, as persons not concerned in the appeal can attend only by consent of the House. The House pronounces the judgment which in the opinion of the majority of the law lords should have been pronounced below, and has jurisdiction in the case of all appeals to give or refuse costs to the successful party. The costs of the appeal if given are taxed by the officers of the House. The jurisdiction as to costs does not directly arise under any statute (see West Ham Guardians v. Bethnal Green Churchwardens, 1896, A.C. 477).

Appeals to the King in Council.—The decisions of ecclesiastical courts when acting within the limits of their jurisdiction, and the decisions of courts in the king’s dominions outside the United Kingdom, and of courts in foreign countries set up under the Foreign Jurisdiction Acts, cannot be dealt with by the House of Lords or any of the ordinary tribunals of any part of the United Kingdom. The power once claimed by the court of king’s bench in England to control the courts of Ireland has lapsed, and its power to intervene in colonial cases is limited to the grant of the writ of habeas corpus to a possession in which no court exists having power to issue that writ or one of like effect (Habeas Corpus Act 1862). As regards all British possessions, the appeal to the king in council is in its origin and nature like that of the provincials unto Caesar, and flows from the royal prerogative to admit appeals. With the growth of the British empire it has been found necessary to create a comparatively constant and stable tribunal to advise the king in the exercise of this prerogative. For this purpose the judicial committee of the privy council was created in 1833. In 1851, and again in 1870, it was reorganized, and by acts of 1876, 1887 and 1898 it received its present form. The committee consists of the president of the council, and of the following persons, if privy councillors—the lord chancellor and ex-chancellors of Great Britain and of Ireland, the four lords of appeal in ordinary, the lords justices of appeal in England or retired lords justices of appeal in England, and persons who hold or have held the office (a) of judge of the High Court of Justice or the court of appeal in England or Ireland, or of the court of session in Scotland; (b) any person who is or has been chief justice or a judge of the Supreme Court of Canada or of a superior court of any province of Canada, of any of the Australian states (except Fiji and Papua), or of New Zealand or the Cape of Good Hope or Natal. The number of persons of this class who may be members at once is limited to five (1895, c. 44); (c) provision is also made for the payment of two privy councillors who have been judges in India who attend the privy council.

Numerous as are the members of the committee, the quorum is three. One or more of the lords of appeal in ordinary usually attend at every hearing, but the composition of the committee is very fluctuating. Appeals from the British dominions abroad lie in criminal as well as civil matters. The right of appeal is regulated as to most possessions by order in council, and in some cases is limited by imperial or colonial statute. Appeals are on fact as well as on law, but the committee rarely if ever disturbs the concurrent judgments on facts of two colonial courts. In the case of admiralty appeals from colonial or consular courts, naval assessors may be called in. The committee also hears (with the aid of ecclesiastical assessors) appeals from ecclesiastical courts. The judgment of the committee is in the form of a report and advice to the king, which is read by one of the members sitting, and no indication is given as to whether the members present are unanimous. Effect is given to the advice by orders in council dismissing or allowing the appeal, and giving direction as to the payment of costs and as to the further proceedings to be taken in the colonial courts.

The procedure of the committee is on the same lines as that on appeals to the House of Lords; no well-arranged code of practice existed however up to the end of 1908, and new rules were then being proposed on the subject. The appeal is commenced by a petition of appeal, and by the giving of security for costs. In colonial appeals printed cases are lodged containing a summary of the contentions of the parties, and with this a printed copy of the record of the proceedings and documents used in the courts appealed from. The hearing is in the privy council chamber and is not public. When an appeal is called on, the counsel and parties are summoned into the chamber, and when the arguments are concluded they are requested to retire. The appeals to the king in council from colonial states having a federal constitution, like Canada and Australia, stand in an exceptional position. The act creating the Supreme Court of Canada purports to make the decision of that court final. But it is still the practice to admit by special leave a prerogative appeal from the court, and to entertain appeals from courts of the provinces of Canada direct to the king in council, without requiring them to go to the Supreme Court. The constitution of the Australian Commonwealth contemplates (§ 73) the possibility of restricting appeals to the king in council from the supreme courts of Australia, and sec. 74 forbids appeals to the king in council except by leave of the High Court of Australia from decision of that court on any question however arising as to the limits inter se of the constitutional powers of the commonwealth and those of any state or states, or as to the limits inter se of the constitutional powers of any two or more states. The exact effect of these enactments and of Australian legislation under § 73 is a matter of controversy.

Scotland.—In Scotland the ordinary appellate tribunal for decisions of inferior courts and of the lords ordinary is the court of session, which for appellate purposes sits in two divisions. Appeals from inferior tribunals in criminal cases go before the judges of the court of session sitting in the High Court of Justiciary. The court of session was in its original constitution a committee of parliament for the performance of its judicial functions, and an appeal to parliament was consequently anomalous. In the reign of Charles II., however, the courts grew so intolerably corrupt that a determined effort was made to have their judgments overturned, by an appeal which was strictly of the old character of a cry for protection against flagrant injustice. It was called a “protest for remeid of law,” and was inserted as one of the national claims in the Petition of Right at the revolution. The treaty of union is silent as to appeals, though definitely excluding the right of English courts to interfere with Scottish courts or cases. The House of Lords has since the Union acted without challenge as the final appellate tribunal for Scotland in civil causes; but has always declined jurisdiction in Scottish criminal cases.

Ireland.—The Supreme Court of Judicature (Ireland) Acts have remodelled the courts and appellate system of Ireland on the same lines as those of England. The High Court of Justice in Ireland now consists of two divisions only, the chancery division, which has little or no appellate functions, and the king’s bench division, which has for Ireland substantially the same power of reviewing and correcting the decisions of inferior courts as has the corresponding court in England. To this there is one exception, that appeals from a county court in Ireland may be heard on circuit by a single judge of assize. In Ireland there is also a court of appeal, created in 1877, whose jurisdiction and procedure follow the same lines as that of the English court of appeal.