Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/773

 ^0. VEEDER: A CENTURY OF JUDICATURE 759 purpose. It seems to have been a common practice of the House during the eighteenth century to consult the judges. During the first quarter of the nineteenth century Lord Chancellor Eldon and Lord Redesdale, who performed most of the judicial functions of the House, seldom called for their views. During the period from the retirement of Eldon to the Judicature Act the judges were frequently consulted, and almost all the recorded advisory opinions of the judges come within this period. Since the Judicature Act the judges have been consulted in only four cases.^ The establishment of permanent courts of appeal has obviated the necessity for such consultations. In practice this method of consideration was subject to several objections. The judges were busy in their own courts and were irregular in responding. Moreover, the manner in which the House put questions of law, without regard to the form in which the questions arose, or to points actually raised, often made it difficult for the judges to give a satisfactory answer.* Indeed, in the matter of the Westminster Bank, 2 CI. & F. 192, the judges declined to answer on the ground that the question was " proposed in terms which render it doubtful whether it is a question confined to the strict legal construc- tion of existing acts of Parliament." However, in the matter ^ Mordaunt v. Moncrieff, 1 Pr. & Div. App. 374, upon the question whether the statutory proceeding for dissolution of a marriage can be instituted or proceeded with either on behalf of or against a husband or a wife who prior to the institution of such proceedings had become incurably insane; Allison v. Bristol Marine Insurance Co., 1 App. Cas. 214; Dalton v. Angus, 6 App. Cas. 742, as to the right of lateral sup- port for buildings; and the celebrated trade union case of Allen v. Flood, (1898) A. C. 1. M'Naghten's case, 10 CI. & F. 199, where he hesitated to answer the questions propounded, " first, because they do not appear to rise out of and are not put with reference to a particular case, or for a par- ticular purpose, which might explain or limit the generality of their terms, so that full answers ought to be applicable to every possible state of facts not inconsistent with those assumed in the questions; secondly, because I have heard no argument at your lordships' bar or elsewhere on the subject of these questions, the want of which I feel the more the greater are the number and extent of questions which might be raised in argument; and, thirdly, from a fear, of which I cannot divest myself, that as these questions relate to matters of criminal law of great importance and frequent occurrence, the an- swers to them by the judges may embarrass the administration of justice when they are cited in criminal cases."
 * These diflSculties were clearly defined by Justice Maule in