Page:Encyclopædia Britannica, Ninth Edition, v. 2.djvu/223

Rh APPEAL 209 will apply. To accomplish this function of an appellate system, it is right that the investigation of the question at issue should have been exhausted in the inferior court, and that the court of appeal should have nothing before it which has not been there considered; for if the inferior court decide on one representation of circumstances, and the court of appeal on another, the public will lose the advantage of having the principle which was applied in the inferior reversed or affirmed in the superior tribunal. The House of Lords has hitherto been a court of appeal from the chief civil 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 justice from the high court of Parliament, when it was refused in the baronial court, or even by the king s judges. Hence the lords exercised the mixed func tion of jurymen and judges, and, as in judgments on impeachment, the house might be influenced by private or party considerations, debating and dividing on the question .before them. A revolution was silently accomplished, liowever, by which the function of reviewing the decisions of the courts fell entirely to the lawyers raised to the peer age, or to other judges brought in to give their aid; and the unprofessional lords only attended to give the sanc tion of a quorum to the proceedings. 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 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, being treated rather as that of a political partisan than of a judge, was sharply commented on in a work of great ability written by Mr James Stuart, who had a deep personal interest in the cause. The case of 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 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 unprofes sional members were resisted. It has been the constant practice of the House, in cases of difficulty, to consult the judges of the inferior courts, and the decision of the House is usually determined by their opinion. ~ Of old, in Scotland, there was something anomalous in an appeal to Parliament, as the Court of Session was in its original constitution a committee of Parliament, for the performance of its judicial functions. In the reign of Charles II., however, the courts grew so intolerably cor rupt that a determined effort was made to have their judg ments overturned, by an appeal which was strictly of the old character of a cry for protection against flagrant injustice. It was called a &quot;protest for rerneid of law,&quot; and was inserted as one of the national claims in the Peti tion of Right at the Revolution. There was no allusion to an appeal system in the Treaty of Union ; but the House of Lords, when appealed to against the judgments of the Court of Session, acted without hesitation. Many attempts were made, but without effect, to carry appeals from the supreme criminal courts in Scotland to the House of Lords. The appeal system of this country previous to the Judicature Act of 1873 was constituted in the following manner. The House of Lords sat during the parliamentary session to hear appeals from the superior Courts of Equity and Common Law, from the corresponding courts in Ireland, and from the Court of Session in Scotland. In none of these cases, however, was the appeal directly from the judge of first instance to the final court. In the Com mon Law Courts, an appeal, under the name of a writ of error, was given from the decision of any one of the Common Law Courts to the decision of members of the other two, sitting in what was called the Court of Exchequer Chamber, and from that court to the House of Lords. In Equity the decisions of the Vice-Chancellors were subject to review before an appeal court, composed of the Lord Chancellor and two Lords Justices of appeal. The same procedure was observed in Ireland. In Scotland the appeal began by a reclaiming note from the Lord Ordinary to one of the divisions of the Court of Session, from which it passed to the House of Lords. The Judi cial Committee of the Privy Council served as a court of final appeal for admiralty, ecclesiastical, and colonial cases. Established in 1833 to hear complaints by way of appeal addressed to her Majesty in Council, it was reconstituted in 1851, and again in 1870. At first it was a court com posed entirely of ex officio judges, but in 1870 four paid judges were appointed the composition of the court being varied from time to time by the addition of other members specially qualified to consider the special cases in hand. Thus, in ecclesiastical appeals the attendance of certain qualified prelates was provided for. The inconvenience of having two independent courts of final appeal, the unsatis factory character of the intermediate process, and the uncertain composition of the appeal court in the House of Lords, were among the chief considerations which suggested the recent judicature reform. By the 36 and 37 Viet. c. 66, the several supreme courts are united and consolidated together under the name of the Supreme Court of Judica ture in England. The Supreme Court is divided into two great tribunals, the first of which is called the High Court of Justice, and the second the Court of Appeal. The latter is invested with all the powers of the superior appeal courts previously existing, but it may be briefly described as a court of appeal from the High Court of Justice. Power is given to her Majesty to transfer by order all appeals and petitions which ought to be heard by the Judicial Committee of the Privy Council to the Court of Appeal. In ecclesias tical cases it is provided that the Court of Appeal &quot; shall be constituted of such, and so many judges thereof, and shall be assisted by such assessors, being archbishops or bishops of the Church of England,&quot; as her Majesty, by any general rule, may think fit to direct. Appeals from inferior tribunals (County Courts, Petty, or Quarter Sessions) are to be determined by the divisional courts of the High Court of Justice, and no further appeal is possible unless by special leave of the divisional court. Appeals may be heard either by the full court of appeal, or by divisional courts thereof, consisting of not less than three judges, and any number of such courts may sit at the same time. The Court of Appeal shall consist of five ex officio and not more than nine ordinary judges; her Majesty may also appoint as additional judges, from time to time, persons who have held certain high judicial offices in the United Kingdom or in India. The Lord Chancellor is President of the Court of Appeal, and the ordinary or additional judges are to be styled Lords Justices of Appeal. The Judicature Act of 1873 made no provision for trans ferring the Scotch and Irish business of the House of Lords to the new Appeal Court, and it is worthy of mention that a successful motion to that effect in the House of II. -- 27