Page:EB1911 - Volume 02.djvu/227

 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&mdash;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.&mdash;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.&mdash;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.

France.&mdash;The court of last resort in France for all cases, whether civil or criminal (en matière criminelle, correctionnelle et de police), is the cour de cassation, which sits in Paris. It is a court of error for the review of all judgments of tribunals of last resort (except juges de paix in certain cases), and for the transfer of causes from one court to another when justice so demands, and to determine conflicts of jurisdiction (Law 1 Dec. 1790). Ordinarily it is confined to errors of law and procedure, but where evidence not available below is brought before the court, it may send the case back for retrial or give the appropriate final judgment, as in the case of Dreyfus (1906). It also hears appeals from courts martial.

Next to the cour de cassation are the courts of appeal, which have jurisdiction to hear appeals (1) in civil matters from courts of first instance, juges de paix, and where the amount in dispute exceeds £60 from commercial courts, tribunaux de commerce (Civil Proc. Code, arts. 443-475); (2) in criminal matters from tribunaux correctionnels (Com. Proc. Code, arts. 202-235). The appeal is both on fact and on law, and applies to interlocutory or preparatory as well as to final judgments.

Spain.&mdash;In Spain the jurisdiction and procedure with reference to appeals is on the same lines as in France. As regards civil matters it is regulated by title 21 of the Civil Procedure Code. The appeal to the supreme court is for the most part on questions of law (por infraccion de ley o de doctrina); but the court has also power to review judgments on materials not available at the first hearing (arts. 1796, 1801).

British India.&mdash;In British India complete and systematic provision is made for appeals both in civil and in criminal cases by the Procedure Codes (Civil of 1882, with subsequent amendments, and Criminal of 1898), and also to some extent by the