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 A Century of English Judicature. A CENTURY

OF

ENGLISH

303

JUDICATURE.

IV. BY VAN VECHTEN VEEDER. THE COURTS OF APPEAL DURING THE FIRST HALF OF THE CENTURY. THE right of appeal is a modern con ception. Down to very recent times it was rigidly withheld save in a strictly limi ted class of cases; and even in those cases in which an appeal was allowed the appellate jurisdiction was administered on principles which were anomalous and irrational in the extreme. In common law cases only matters of error apparent on the record were reviewable, and no appeal lay on a motion for a new trial or to enter a verdict on a non-suit. No error lay upon a special case framed by consent without a trial, but only from a spe cial verdict where the parties had arranged or the judge had directed at the trial a spe cial statement of the facts; in other words the expense and delay of a useless trial were required as a condition of appeal. And even where appeal was possible the appellant was held to the strictest observance of all the difficult formalities involved in challenging the direction of a judge by means of a bill of exceptions. The Exchequer Chamber, the intermediate court of appeal in common law, practically dates from 1832. The Court of Appeal in Chancery was not established until 1851. The final courts of appeal, the House of Lords and the Privy Council, are of great antiquity; but prior to the nineteenth cen tury their judicial functions were of second ary importance. The appellate jurisdiction is almost entirely a creation of the nine teenth century. This late development may be explained in part, so far at least as the common law jurisdiction is concerned, by the efficiency of the trial courts. The three great common law courts in bane administered the system then in force as well as any court could administer it. It was not until the break down of the common

law courts in bane that more liberal rights of appeal became necessary. Moreover, the House could at all times avail itself of the advice of the common law judges. This ad vice, it is true, they were not bound to fol low, but, in fact, it was seldom overridden. In chancery, until the creation of the Court of Appeal in Chancery, the situation was not so satisfactory; in fact, it could not well have been worse. The Chancellor sat alone on appeal from the Vice-Chancellor and from the Master of the Rolls (often his superiors in technical learning); and there was usually small satisfaction in pursuing an appeal to the House of Lords, because, owing to the defective organization of that tribunal, there, too, the Chancellor usually dominated. The advice of the chancery judges was not available, because the House had no authority to summon them unless, as rarely happened, they were also peers.

COURT OF EXCHEQUER CHAMBER. A Court of Exchequer Chamber existed from the earliest times both as a court of error and a court of debate. As a court for debate it consisted of the assembled judges, presided over by the Lord Chancellor, and here matters of importance and difficulty were discussed before judgment was ren dered in the court below (e. g. Calvin's case).1 By 31 Eclw. III., c. 12, it was con 1 It was in the Exchequer Chamber that the judges as sembled when they were consulted by the king. These consultations were frequent in early times. The judpcs were consulted by Richard II as to his kingly power; by Henry VII as to whether the devolution of the crown upon him purged him of his attainder by Richard III; by Henry VIII as to whether on a bill of attainder a person need be heard in his own defence. The practice became so common that in 1591 the assembled judges volunteered some good advice on the subject of illegal commitments.