Chapter VII · THE LORDS AS THE SUPREME COURT OF APPEAL

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The House of Lords is a judicial tribunal as well as a legislative assembly. Sitting as the Supreme Court of Appeal, it gives to the law, which it assists in passing, its final interpretation according to the occasion and necessity of a particular case. As such it is the ultimate resort of the suitor who thinks an injustice has been done him by a decision of any of the Law Courts. Its judgment in the case is conclusive, and can be set aside only by Act of Parliament.

The judicial sittings of the House of Lords are unaffected by the adjournment, prorogation, or even the dissolution of Parliament. They are held as frequently as the list of appeals awaiting trial during term requires. The public are freely admitted. A visitor, moved solely by curiosity, seldom finds his way there, and yet to see the highest court of justice in the land at work is well worth while. With the legislative House of Lords the public is quite familiar. Little is generally known of the judicial House of Lords. The distinction between the two does not appear, at times, to be clearly understood.

In its composition, its procedure, and its environment, the House of Lords is utterly unlike any other Court. The Lord Chancellor enters the Chamber, wearing his long flowing robe and full-bottomed wig. He is preceded by the Serjeant-at-Arms, bearing the Mace on his shoulder, and by another officer of the House called the Purse-Bearer, carrying a richly embroidered satchel, which is supposed to hold the Great Seal of which the Chancellor is the Lord Keeper. The other Law Lords are already in their places. The Lord Chancellor takes his seat on the Woolsack and the Mace is placed behind him. The presence of the Mace indicates that the House of Lords is in being, whether for legislative or judicial purposes. The House always opens its proceedings with devotions. Prayers for Divine light and leading in the debates or trials are said by the junior Bishop, or, in his absence, by the Lord Chancellor. The responses are given by the other Law Lords.

But the doors of the Chamber have not yet been opened to the litigants and their counsel. Apart from the Lord Chancellor and the Law Lords, the only persons present at devotions are the Serjeant-at-Arms, the Purse-Bearer, one of the Clerks of the House, who takes minutes of the proceedings of the Court, its orders and judgments, and the Yeoman Usher of the Black Rod. After prayers the Clerk reads the title of the first appeal case on the list. “Call in the parties in the case,” says the Lord Chancellor to Black Rod, and thereupon the doors of the Chamber are thrown open. Immediately inside the portals is a low oak partition, or barrier, running across the Chamber. This is the Bar. Here the lawyers, litigants, and general public assemble. In the centre of the barrier there is a sort of pen, in which the Speaker stands when the Commons are summoned by Black Rod to the House of Lords, and within it counsel for both appellant and respondent, with their solicitors, are accommodated when the House sits as the Court of Appeal. The Lord Chancellor comes down from the Woolsack and takes his seat at a temporary table, spread with a scarlet cloth, placed near to the Bar. The other Law Lords sit on the front benches to the right and left of him, each having a small movable table provided with pens, ink and paper, and a copy of a book, purple-bound, containing the statements of the case on which the rival parties in the appeal about to be heard respectively rely. Unlike the Lord Chancellor, the Law Lords are in ordinary morning attire. How strange it seems that while in all the lower Law Courts the judges are distinguished by the imposing trappings of their office, here, in the Supreme Court of Appeal, the Lord Chancellor alone wears wig and gown. It is another indication that what we are witnessing is a sitting, not really of a Law Court, but of the House of Lords. The forms and procedure of a legislative body, rather than of a Law Court, are observed.

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Every peer has the right to assist in the proceedings of the House of Lords, whether it sits as a Court of Appeal or as a branch of the Legislature. But in practice lay peers do not now interfere in the appellate business of the House, and the hearing of appeals is left entirely to what are called Law Lords. It was not always so. By an Act passed in 1824 every lay peer was bound to attend the House when it sat as a Court of Appeal at least once in a session, under a penalty of £50. Three Lords have always constituted a House for judicial as well as for legislative purposes. At that time the Court often consisted of the Lord Chancellor, or one of his surviving predecessors in office, and two lay peers. The decision in the appeal was, however, always left to the Law Lord. The lay peers were simply dumb figures brought in to form the quorum of three necessary to enable business to be transacted. Several attempts were unsuccessfully made to remedy this state of things before a solution was found. With a view to strengthening the legal element in the House by making peers of ex-Judges of the High Court, it happened in 1856 that Queen Victoria, on the advice of Lord Palmerston’s Government, revived the right of the Crown to make life peers which had been in abeyance for 400 years, and issued a patent creating Sir James Parke, formerly a Baron of the Exchequer, Lord Wensleydale “for and during the term of his natural life.” The Lords were jealous of their hereditary rank and privileges. They disputed the right of the Crown to create peerages for life, and contended that hereditary peers only could have seats in the House. “The very essence of Nobility,” said Lord Malmesbury, “is in the succession to the title by posterity.”

The Law Lords joined in the protest. They regarded the relegating of a law peerage to a lower or secondary class in dignity as a dishonour to their profession. Lord Lyndhurst, a Law Lord then in his eighty-sixth year, reappeared in the House of Lords to lead the opposition. “What has the profession of the law done to merit this indignity?” he asked. But it was on the ground of privilege that he mainly relied. He insisted that as the Constitution, being unwritten, was one of usage, no act of the prerogative which, like the creation of a peerage for life, had fallen into complete disuse for centuries, could be revived without the sanction of an Act of Parliament. Other constitutional authorities argued that prerogatives of the Sovereign cannot become obsolete by reason that they are not used, and are never abrogated except by Act of Parliament. Finally, the peers passed a resolution declaring that the patent in question conferred only the empty title of “Lord,” without the right to sit and vote, and the Government, bowing to the storm, made an hereditary peer of Baron Wensleydale, with the customary right of succession to “heirs male of his body lawfully begotten.”

In 1872 the constitution of the House of Lords as the final Court of Appeal again became the subject of public discussion. Lord Hatherley, the Lord Chancellor of Gladstone’s Administration, brought in a Bill to abolish the appellate jurisdiction both of the House of Lords and of the Judicial Committee of the Privy Council—which hears appeals from India and the Dominions—and to create, instead, an Imperial Court of Appeal for the decision of all cases of the kind which went hitherto to these separate and independent tribunals. The feeling among the Lords was strongly against any invasion of their ancient right to revise on appeal the judgments of the Courts of Law, and the Bill consequently had to be withdrawn. In the following year Lord Selbourne—who had succeeded to the Woolsack, in the same Administration, on the resignation of Lord Hatherley owing to failing eyesight—introduced another Supreme Court of Judicature Bill. It proposed to substitute for the duplicate machinery of the House of Lords and the Judicial Committee of the Privy Council one Court of Appeal consisting of nine judges, sitting in three divisions. Strange to say, the Bill this time passed both Houses. The Lords had now surrendered by Act of Parliament their judicial functions. However, they soon repented of their action, and not too late to prevent the change taking effect. Parliament restored what Parliament two years before had taken away.

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In 1876 Lord Cairns—then the Lord Chancellor of Disraeli’s Administration—also tried his hand at the reorganization of the judicature system. The Appellate Jurisdiction Bill he brought in was passed and came into operation. By it the judicial functions of the Lords were preserved, and the House, as the Supreme Court of Appeal, was made more efficient. Formerly the House, sitting as the Court of Appeal, was often constituted, as we have seen, of one Law Lord and two lay peers. The Act of 1876 provided that at least three Law Lords shall be present at the hearing and determination of appeals. The Lord Chancellor of England continued to be the president of the Court. Four Lords of Appeal in Ordinary were specially created by the Act of 1876 to assist in the discharge of judicial business. The qualification required of a Lord of Appeal in Ordinary is that he has been a Judge of the Superior Courts for not less than two years, or that for not less than fifteen years he has been a practising barrister in England or Ireland, or a practising advocate in Scotland. The number of Lords of Appeal in Ordinary was subsequently increased to six. It is now generally accepted that one should represent Scottish interests, another Irish interests, and the remaining four English interests. Each has a salary of £6,000 a year, with a pension of £4,000 a year on retirement, and the rank of a Baron. Though a Lord of Appeal in Ordinary receives a writ of summons to sit and vote as a peer in the House of Lords as a branch of the Legislature, his peerage is but a life one, and, accordingly, his title does not descend to his heir. Besides these paid Law Lords, it was provided that hereditary peers who had held high judicial offices should, ex officio, be entitled to take part in the hearing of appeals. So by gradually established usage the judicial sittings of the House of Lords are attended only by the Law Lords. It would be lawful for lay peers to attend and to vote, but it would not be constitutional.

The Appellate Jurisdiction Act of 1876, under which the offices of Lords of Appeal in Ordinary were appointed, expressly provided that each of the holders of these offices “shall during the time that he continues in his office of Lord of Appeal in Ordinary, and no longer, be entitled to a writ of summons to attend and to sit and vote in the House of Lords.” In other words, a Lord of Appeal in Ordinary, on ceasing to hold office, retained his title as a peer, but lost his seat in the House of Lords. This was the position of a Lord of Appeal in Ordinary until 1887, when another Appellate Jurisdiction Act was passed, enacting, among other things, that a retired Lord of Appeal in Ordinary is to continue to be a Member of the House of Lords for life. It was under its provisions that Lord Russell of Killowen retained his life peerage and a seat in the House of Lords after his promotion from a Lordship of Appeal in Ordinary to the Lord Chief Justiceship. By passing these two Acts, providing for the appointment of life peers to discharge legislative as well as judicial functions, the House of Lords surrendered their claim that none but hereditary peers should sit and vote. Lords of Appeal in Ordinary sometimes speak in debates on questions of party politics even at the ordinary meetings of the House.

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An appeal may be made to the House of Lords from any order or judgment in a civil suit of the Court of Appeal in England, the Court of Appeal in Ireland, or the Court of Session in Scotland. Before the case has reached any of these appeal courts it must, of course, have been heard and decided in a lower tribunal, so that the question at issue has been the subject of a judgment in at least two courts—the court in which the suit originated and the Court of Appeal—before it comes finally before the House of Lords. If the litigant who has lost in the Court of Appeal retains his faith in the justice of his cause, or is advised by counsel that the decision is against the law, he can obtain from the House of Lords a definite and conclusive judgment. But this final pronouncement by the highest legal authorities in the land on the point at issue is a very costly thing to obtain. The appellant who seeks to have the verdict of the court below reversed must give as security for costs—should the judgment of the House of Lords be against him—his personal obligation to the amount of £500, and the bond of a surety for £200. There are also the fees of the agents and counsel, which are very high. The respondent, or the party in whose favour the Court of Appeal has decided, is not required to give security for costs, but should he be defeated in the House of Lords, he may be ordered to bear portion of the expenses of the appellant.

Something else, besides giving security for costs, is required of the appellant beforehand. An appeal to the House of Lords is brought by way of petition. It must be addressed “To the Right Honourable the House of Lords,” and set forth that it is “the humble petition and appeal” of So-and-so, praying that the judgment in such-and-such a case “may be reviewed before his Majesty the King in his Court of Parliament, in order that the said Court may determine what of right and according to the law and custom of this Realm ought to be done in the subject-matter of such appeal.” The petition must be printed on parchment. Its prayer must be supported by two counsel, who have appeared for the appellant in the Court of Appeal, or propose to plead for him before the House of Lords. Several copies of the counter cases of the disputants, printed in clear type on quarto sheets, and bound in book form, at the expense of the appellant, must be lodged with the petition. It is also necessary to supply copies of the book bound in purple cloth for the use of the Law Lords.

The case opens at once. No preliminary objections of a technical nature or applications for adjournment are allowed. Such points are previously dealt with by a Committee of the House of Lords called the Appeal Committee, which is appointed at the opening of every session to relieve the House of the task of seeing that the Standing Orders have been complied with by appellant, and of dealing with any objection of the respondent to the appeal being heard, or with any application for an extension of time. There is no bustle and no excitement. The methods of the Court are austerely judicial. No witnesses are examined. It is all argument. Brow-beating is, therefore, unknown. Two counsel are heard on each side. Though lawyers who are Members of the House of Commons are precluded from practising as counsel before any Committee of the House of Commons, or from advising upon any Private Bill, or other proceeding before Parliament, they may plead at the Bar of the House of Lords in all judicial cases. The lawyer who opens the case stands at the centre of the Bar, and in a placid conversational style states at great length the facts and the points of law upon which he relies. Then counsel on the other side leisurely and with similar amplitude unfolds the case of his client. Their lordships listen with unwearied patience and the closest attention to the speeches. They interpose with questions only to seek information, or to make intelligible a point laboured by counsel. They may even be heard commenting on the obscurity or confusion of Acts of Parliament bearing on the case which the House of Lords, and, perhaps their lordships themselves, have had a share in framing. Judgment is not, as a rule, delivered at the close of the arguments. Knotty legal problems, or delicate and difficult points of equity, are always involved in these appeals, and therefore their lordships allow themselves plenty of time for the consideration of their judgment.

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On the day of judgment the Law Lords are not disposed in quite the same way as they were on the day the arguments were heard. The Law Lords are again sitting on the front benches close to the Bar, with their little tables before them; but the Lord Chancellor is now on the Woolsack. Rising from his seat, the Lord Chancellor reads his judgment from a manuscript, and concludes by moving that it be agreed to—that the appeal be affirmed, altered, or reversed, as the case may be. The Lord Chancellor is followed by the other Law Lords, in the order of precedence, each reading from a manuscript, in like manner, reasons justifying the decision to which he has come. All begin their addresses with the invocation, “My Lords.” They are supposed to be not Judges delivering judgment in a case, but Members of the House of Lords as a legislative assembly stating in debate the reasons why the House should take a particular course in regard to the question before it.

When all the Law Lords have spoken, the question at issue is put in exactly the same form as if the House were sitting for the purposes of legislation. Should the Lord Chancellor have, for example, arrived at a decision hostile to the appellant, he says: “The question is that this appeal be dismissed. As many as are of that opinion will say ‘Content’; of the contrary opinion, ‘Not-Content’” and then he adds, “The Contents have it.” The House is usually unanimous in its decisions. But should there be a conflict of opinion among the Law Lords, judgment is pronounced in accordance with the views of the majority. It is possible, however, that there may not be a majority one way or the other. In the event of their lordships being equally divided in opinion, the decision of the Court of Appeal stands affirmed, and each party has to pay his own costs. With a view to avoiding such a result it is usually arranged that the tribunal should be composed of an uneven number of Law Lords. The Lord Chancellor, in cases where the issue has been decided unanimously or by a majority, finally declares: “The judgment of the House is that this appeal be dismissed, and that the appellant do pay the respondent’s costs in the appeal.” The decision thus given is the judgment of the House of Lords, and it is entered as such in the Journals of the House. It does not make the law, nor alter the law. It interprets and fixes the law. What it says is the last word on the tangled legal point at issue. The fiat is final, and irrevocable save by Act of Parliament, for Parliament, as was once said, can do anything, except make a man a woman or a woman a man.