Page:The Green Bag (1889–1914), Volume 13.pdf/341

 Зо8

vise; the decision rests with the House alone. Lord Campbell .expressed the accepted doc trine in Burdett v. Spilsbury, ю Cl. & F. 413: "When your lordships consult the Queen's judges I do not at all consider that you are bound by the opinion of the major ity, or even by their unanimous opinion, un less you are perfectly satisfied with the rea sons which they assign for the opinion they give." Individual lords have taken a dif ferent view of their duty, noticeably Lord Wynford (Atty. Gen. v. Winstanley, 5 Bligh [N. S.] 144). Still there are only five in stances in modern times in which the House has rendered judgment contrary to the opinion of a majority of the judges: O'Connell v. The Queen, 11 Cl. & F. 232, on the validity of a general judgment when some of the counts in an indictment are bad; Jeffreys v. Boosey, 4 H. L. 815, on copyright; Unwin v. Heath, 5 H. L. 513; Hammersmith Ry. v. Brand, 4 E. & I. App. 171, on the right to recover for damage necessarily resulting from the exercise of powers conferred by Parliament; and Allen v. Flood (1898), A. C. i. The House of Lords reports from 1827 to 1900 contain one hundred and twenty-five cases in which the judges have been called upon for advice. Of this number not more than a score are in any sense landmarks in legal history. Indeed, aside from the rela tive unimportance of most of these cases, it is difficult to understand upon what principle the House acted in determining when the judges should be assembled. For in twentyfour cases there was no difference of opinion from the beginning of the case in the trial court to its final conclusion in the House of Lords; and in fifty-eight cases the assembled judges were unanimous in opinion. The form of judgment in the House is that of a motion, as in ordinary debates, recorded in the journal of the House. The House, unlike the Privy Council (dishing v. Dupuy. 5 App. Саз. 409), holds itself bound by its own judgments. It also differs from the Privy Council in its privilege of summoning the judges.

The reports of Dow (1812-18) and of Bligh (1819-21) covering the long chancel lorship of Lord Eldon, indicate the defects of the House as an appellate tribunal. Dur ing this time the judicial functions of the House were performed by Lord Eldon, as sisted from time to time by Lord Redesdale, the Irish Chancellor. So far as their attain ments in equity were concerned these two eminent judges left little to be desired. But Eldon often sat alone. Inasmuch as three peers were required to constitute a House, it often became necessary to catch a bishop or two, or press one or more lay peers into ser vice, to act as dummies, and then the Lord Chancellor, gravely assisted by these two mutes, finally disposed of appeals from his own decisions. As the Earl of Derby said to his colleagues in 1856, they were upon such occasions "like the lay figures which are in troduced in a painter's studio for the pur pose of adding to the completeness of the judicial tableau." In spite of its manifest absurdity this system was viewed with ven eration. The satire of Swift did not prevent Lord Hardwicke from saying that if he went wrong in Penn "'. Baltimore (i Ves. ST., 446) his errors would be corrected by a sen ate equal to that of Rome itself." Yet in every case that went to the House during his Chancellorship Lord Hardwicke himself constituted that senate, and affirmed in judicial solitude his own excellent opinions. And we read in Blackstone the wondrous tale of peers "bound upon their conscience and honor (equal to other men's oaths) to be skilled in the laws of their country"! It may be imagined that such a tribunal would also be calculated to discourage com mon law appeals, particularly in view of Eldon's assertion of his undoubted right to override the judgment of the assembled judges of the common law courts. Upon the retirement of Eldon the judicial functions of the House were largely domi nated for more than twenty years by Lord Brougham. The reports covering this period are Bligh; new scries (1827-37) (duplicated in part of Dow and Clark), Clark and Fin