1. The House of Lords1
The Era of Lord Eldon
In the last years of Eldon’s Chancellorship, both of the courts over which he presided experienced a crisis of arrears. Critics of both Chancery and the House of Lords directed their fire chiefly at delays in getting causes heard once they were set down, but whereas in Chancery that was attributed largely to Eldon’s judicial style and insistence on retaining bankruptcy business, it was generally acknowledged that the problems of the Lords did not arise from his defects as a judge. The basic cause was clear to everyone, including select committees, namely an increase in appeals, particularly from Scotland, which outstripped inadequate judicial resources. Earlier remedies had plainly proved insufficient and in 1823 Eldon supported a fresh inquiry.2
Unlike Chancery, the malaise in the Lords was not a product of deep-rooted and complex structural and procedural defects. The residue of their original jurisdiction—peerage claims, privilege matters, criminal trials of peers etc—was never numerous enough to cause delays and the last impeachment, Lord Melville’s, had taken place in 1805.3 The procedure in appeals, though it differed according to whether the cause was an English or Irish equity appeal, a Scottish appeal or a writ of error from the common law courts, was comparatively straightforward, albeit embodied in standing orders which were not collected or (p.529) arranged in accessible form.4 In equity appeals, for example, though every party to the cause below must be a party to the appeal, they were not obliged to take a full and separate part in the proceedings, so this did not have the ill-effects it had in Chancery.5
What kept the process from dragging out was the Lords’ firm stand against examining witnesses or receiving new written evidence.6 They might remit the cause to the court below if important new evidence was brought forward, but in Attwood v. Small Brougham insisted that even that should be done sparingly.7 As a result, interlocutory applications were comparatively sparse and since 1812 had been referred to an appeals committee consisting of the ‘law lords’, whose recommendation was invariably adopted.8
As in other courts, many causes never reached the hearing stage. Between 1791 and 1800 there were 290 set down and 152 heard; in the next decade 492 and 130, so that figures showing an unmanageable number of causes depending could be misleading.9 Cooper speculated that many ‘melted away’ in the long interval before a hearing because of deaths or changes of circumstances,10 but some, especially in Scotland, were brought merely for delay, since until 1808 even the presentation of a petition suspended the execution of a judgment.11 It was plausibly suggested that while the long delay in obtaining a hearing tended to discourage genuine appeals, it positively encouraged these bogus ones.12 Aware of the possibility of abuses, in Way v. Foy (1812) Eldon had reinforced the requirement that counsel sign the petition by demanding a declaration that there was reasonable cause.13 This, however, was little more than symbolic since the purely tactical appeals were withdrawn once the hearing date became imminent.14
The House was not unduly indulgent to appellants. It consistently refused to enlarge the two-year time limit on equity appeals, and requests for extra time to submit the printed case were not granted as a matter of course.15 It was a fixed rule that the appellant would not be awarded costs if successful, since that would be unfair to a respondent relying in good faith on the judgment of a competent (p.530)court below,16 and there was no automatic stay of proceedings in the lower court if the appeal was from an interlocutory order.17 There was also the barrier of cost. The recognizance was not a major obstacle, for it was considered that appeal was a constitutional right and recognizances might not be disputed on the grounds that the appellant would be unable to make them good.18 However, sizeable sums needed to be laid out during the proceedings, including the expense of 500 copies of the printed case, often bulked out with supporting documents. 19
But neither this, nor the measures taken to discourage Scottish appeals had made much impact,20 and not only did the Scottish litigants persist, but Irish cases grew in number and even writs of error from English courts showed an increase.21 Because it was in cases of error that the Lords most frequently summoned the judges for their opinions, that would add to delays,22 but for the time being it was the Scots who posed the main problem. The select committee found 225 cases in the queue, 151 from Scotland,23 and sought to tackle the problem from both ends. Further measures were proposed to reduce Scottish appeals, some of which were considered frivolous or trivial, and suggestions were made to reduce the demands of Chancery upon the Lord Chancellor.24 Judicial sittings were extended from three to five mornings a week, but the difficulty lay in finding manpower for them. With more than 300 peers, making up a quorum of three should have been easy, but Scottish law appeals did not offer much entertainment and lay peers had become reluctant to exhibit that ‘delicacy of sentiment so peculiar to noble birth’ which Blackstone had claimed made them such scrupulously honest judges.25The peers had no desire to relinquish their appellate role, jealously cherishing their place in the mixed polity of King, Lords, and Commons. (p.531) Rather, they were content that the Chancellor or other law lords should take the lead in ordinary cases, obtaining the opinions of the judges where necessary, and that their views should normally prevail. There were still instances, however, where even Eldon’s authoritative opinion was rejected by the House,26 and on occasion, in the unexpected absence of any law lords, lay peers would take the decision unaided, albeit advised by the judges.27
That, however, was unusual. At least one law lord was practically indispensable, and that created problems, for as a result of Eldon’s interminable hold on the great seal there were no former Chancellors in the House. Abbott, the Chief Justice of the King’s Bench, was not given a peerage until 1827,28 and then was usually too busy in his own court to afford much help, so apart from Gifford MR Eldon had regular assistance only from Lord Redesdale.29 Eldon himself could not be faulted, having taken infinite pains to familiarize himself with Scottish law, and the quality of decisions, now properly reported, was generally high.30 Unfortunately, however, beyond making Gifford deputy speaker, Eldon was bereft of constructive ideas for expediting hearings.
The Select Committee had no desire to dilute the peerage by adding to the judicial peers, but to ensure that hearings were not delayed for want of lay peers it recommended a rota of attendance for all able-bodied peers, with fines for non-compliance.31 In 1824 and 1825 the House rattled through 82 and 86 cases respectively and the immediate crisis was averted, but Eldon’s resignation led to a further innovation. His successor, Lyndhurst, was still getting to grips with equity and had no intention of grappling with Scots law too. Lyndhurst persuaded the peers to accept two deputy speakers, not members of the House, to preside over appeals, and in reality to decide them; Alexander CB would handle the Scots, Leach MR the equity cases, while Lyndhurst himself coped with the remainder.32
These expedients carried a price. Both the rota and the deputy speakers exposed the pretence that the peers were acting as a bench of judges. Lord King mercilessly quizzed the House on just what was expected of him when he (p.532) sat, perhaps on a part-heard appeal,33 and Lord Holland deplored the fact that ‘[e]very man in the country was now informed of the manner in which this business was now managed’. Though Holland ‘knew no distinction between learned and unlearned Lords’, it was not that the latter were expected to play only a ceremonial role in judicial proceedings that upset him: ‘what he objected to was the exposure’.34 Holland also deplored the resort to deputy speakers, which had indeed elements of farce since they were not allowed to address the House but must whisper their opinions to a compliant peer for him to voice.35 The peers were in a touchy and suspicious mood as the collapse of the old constitution put their own place in the constitution in doubt. Their judicial role was of very minor importance in the wider constitutional frame, but they were not prepared formally to hand it over to the judges.
From Brougham to the Judicature Commission
When Brougham became Lord Chancellor in 1830 he did not have the Lords near the top of his ambitious list of institutional reforms, which included important alterations to other appeal fora. He also revelled in the chance to display his learning in Scottish law and breezed through the Lords appeals at great speed, deciding 129 in 1830 and 1831.36 Arrears were cleared, the government was persuaded to make Chief Justice Denman a peer,37 and with Lyndhurst, the Irish Chancellor Plunket and that borderline law lord the Earl of Devon often available, the indignity of the rota was ended.38With the Lords now looking more like a court of law, reform was no longer a necessity, which would make its accomplishment more difficult.
Melbourne resigned before Brougham’s own plan, which was in effect to divert all appeals to the Lords to his Judicial Committee of the Privy Council, could even be debated, and other ambitious schemes for remodelling the role of the Lord Chancellor and the highest courts never got off the ground.39 The only one (p.533) with tentative government support was Cottenham’s, which would have taken the Chancellor out of Chancery and made him president of the Judicial Committee, but even a modest bill enabling the Lords to hear appeals outside the parliamentary session, encountered too much resistance to pass.40 Campbell also tried to achieve that in 1841, but by linking it with the merger of the two bodies ruined its chances.41 The peers were disinclined to part with their jurisdiction or to become more like other courts, even though some distinctive features, such as the flexibility in the order in which appeals were heard, which encouraged lobbying, the delays in delivering judgments42and the occasionally wayward decisions occasioned by ignorance of the relevant law caused discontent.43 Their conservatism left two key questions unresolved.
The first was whether lay peers might still vote on an appeal. In 1844 a writ of error was brought by Daniel O’Connell to overturn his conviction for conspiracy in the Queen’s Bench of Ireland. Against the opinion of the judges, three law lords (all sound Whigs) outvoted Lyndhurst and Brougham in O’Connell’s favour.44 Although the decision seemed to owe as much to politics as to law, the party’s leaders gave no countenance to Conservative peers who were disposed to insist on voting, and tactful interventions by Wharncliffe and Lyndhurst dissuaded them from the attempt.45 In yielding to these moderate counsels the dissident peers effectively gave up the principle, and with each passing year it became less likely that lay votes would be attempted, though several witnesses to the select committee in 1856 maintained that they were still legitimate and might sometimes be desirable.46
However, if the Lords had become essentially a court of appeal composed of lawyers, it needed enough of them to do the job. That was no problem in the 1840s. Cottenham, Lyndhurst, Brougham, and Campbell were well able to cope (p.534) with around 35 cases a year, still mostly Scottish, which occupied them for about 50 days.47 However, there was a period after 1850 when Brougham, with nominal assistance from a couple of lay peers, acted as a one-man court, more to his own satisfaction than others’,48 and when he was reinforced by St. Leonards and Cranworth matters were not much improved, since the trio were often at odds, which created an undignified atmosphere and, when one was absent, frequently resulted in the decision of the court below being affirmed because their differences could not be resolved.49 With the superior courts undergoing investigation and reform, it was inevitable that the defects of the highest court should also attract criticism. The situation demanded a temporary increase in manpower and an inquiry into procedural questions. Instead, Palmerston failed to restrain his headstrong Solicitor-General Bethell from averring that the law lords were comporting themselves ‘in a manner which would disgrace the lowest court of justice in the kingdom’,50 and pushing the government into a hasty and ill-considered course of action.
They proposed to create life peerages, offered first to Sir James Parke, then the more cautious Sir Stephen Lushington.51 This idea had been mooted in the 1830s and revived in 1851, when Russell had offered such a peerage to Lushington, and Redesdale had suggested time-limited peerages for lawyers.52 It removed a big obstacle to raising judges to the peerage, which was that many of those with issue, such as the philoprogenitive Chief Baron Pollock, could not leave them enough money to sustain the living standard expected of a peer. But both the choice of Parke and the timing of the proposal were spectacularly inept. Since Parke was elderly and childless, the offer of a mere life peerage fuelled suspicions that this was a precedent for the infiltration of eminent professionals and scientists into the House, as Prince Albert was believed to want,53 and that it was welcomed by the maverick Whig Sir George Grey and the radical Administrative Reform (p.535) Association only aggravated hostility among conservatives.54 Furthermore, Cranworth and Bethell inexcusably failed to consult their own profession and reaped a harvest of indignant protests, not least a weighty intervention from Lyndhurst, at this supposed slight on lawyers.
The ministry was unable to persuade Parliament either to agree that life peers could be made by prerogative or to do it by legislation. Instead, they had to accept a call for an inquiry from Derby, who had criticized the workings of the appellate process.55 That Committee endured some bruising exchanges between Bethell and the law lords, who insisted on unconvincing vindications of their recent record, and it had to be manouvered into endorsing some of Derby’s criticisms to provide the basis for a compromise between the parties.56 The Committee agreed that the sittings should no longer be held only when Parliament was in session, resurrected the old expedient of paid deputy speakers from the judiciary, and proposed a higher quorum, of five, but its middle course served only to attract opposition from conservatives and reformers alike and a bill based upon its recommendations had to be abandoned.57
So the House continued to operate only through the services of past and present Lord Chancellors and a variable number of other peers with judicial experience. It managed because appeals seldom rose much above 40 a year, and the political carousel deposited further ex-Chancellors in Chelmsford and Westbury. The legal membership of the House was further enlarged by peerages given to Lord Colonsay, the former Lord President McNeill (Scottish witnesses before the Select Committee had been divided on whether they should have a Scottish law lord58), and Pemberton-Leigh, as Lord Kingsdown.59 The end of divorce bills in 1857 also increased the time the law lords could give to appeals.
The Judicature Commission
In 1867 Disraeli’s momentous ‘leap in the dark’ doubled the electorate. In the narrower world of the law the Judicature Commission was set up, and though the Lords and Privy Council were outside its terms of reference (a separate (p.536) commission was sitting for Scotland), they could not be unaffected by its deliberations. There was now the prospect of what Bagehot sought, that ‘[t]he supreme court of the English people ought to be a great conspicuous tribunal…ought not to be hidden beneath the robes of a legislative assembly’.60 What could scarcely have been foreseen, however, was that instead of a leap in the dark there would be a decade of trips, stumbles, and falls, and that instead of a ‘great conspicuous tribunal’ the outcome would be that the two existing bodies would still share separately the role of a court of final appeal.
What Stevens called ‘a story of intrigue, legislation and counter-legislation that virtually defies unravelling’61 has since been meticulously pieced together by Steele and need only be summarized here.62 In the first stage, Hatherley made two characteristically unskilful attempts to improve the appeals structure. The first, in 1870, was part of his ill-fated bill to implement the Commission’s first report and went too far for the peers by providing for commoner privy councillors to form a minority of an annually chosen ‘judicial committee’; the second, in 1871, aimed to unite the Lords and Judicial Committee but made little headway.63 Between the two Hatherley had been compelled to add paid judges to the Privy Council as a temporary measure.64
A select committee set up in response to the second Hatherley bill by a bare majority recommended the amalgamation of Judicial Committee and Lords for judicial purposes; reinforced by four professional law lords (lords of appeal), who would be life peers, this tribunal would be able to sit all year and in divisions.65 But the new Lord Chancellor, Selborne, scorned the Lords as a court of law and produced a far bolder plan for a large and powerful court of appeal which would be the final tribunal for appeals from English courts (other than ecclesiastical courts), and for colonial appeals, these latter by reference from the Privy Council, to which they would continue to be addressed. Selborne was too prudent to propose sending Scottish and Irish appeals to his new court immediately but expected they would eventually follow the English route; his bill made their counsel eligible for appointment as its judges.
(p.537) Selborne was a strong opponent of the ‘double appeal’, especially while the common law divisions doggedly persisted in preserving the banc system, and he had the advantage over Hatherley in that Cairns was generally in sympathy with his proposals, though Cairns would have preferred a gradualist approach, ‘choking off’ appeals to the Lords by imposing monetary and other restrictions.
Selborne’s bill had an easy passage through the Lords and only hit trouble in the Commons because Gladstone tried to extend it to Scottish and Irish appeals in precisely the way its author had forborne to do.66 The appeal sections of the bill, however, never became operative. Gladstone’s ‘row of extinct volcanoes’ lost power at the general election of 1874 and Selborne, far from extinct, was left to rumble and steam as his handiwork was undone. This was not Cairns’ doing, but in a lengthy passage of politicking he lost a battle within his own party to reactionary elements which became a highly effective ‘Committee for Preserving the House of Lords’ headed by Redesdale in the Lords and W. T. Charley and Sir George Bowyer in the Commons.67 Cairns might have been wiser not to have pressed Selborne’s proposals to their logical conclusion as his 1874 bill did, for by sending the Scots and Irish to the new ‘Imperial Court of Appeal’ he aroused opposition in those quarters.68 Disraeli, with characteristic ‘naked opportunism’ was anxious only that ‘the impotence of the government should be demonstrated to the country’69 and readily yielded to the clamour from the Committee and its supporters, forcing Cairns to substitute a measure which preserved the double appeal for British courts, left the Judicial Committee alone and reinstated the appellate jurisdiction of the House of Lords.70
The triumph of the conservatives was not complete however. Like the Judicial Committee, the Lords was now to have professional judges, the lords of appeal in ordinary, who were peers only while they continued in that office. How far this protected the role of the Upper House in the constitution was a moot point. While some observers saw a classic example of the English genius for adapting venerable institutions to changing times, others who had favoured the retention of a second appeal would not have chosen this expensive and anachronistic forum.71
The Appellate Jurisdiction Act was shorn even of the modifications to the working of the House that Cairns had envisaged, for it neither created a judicial committee nor excluded lay peers from participating in judicial work.73 The latter was achieved in practice, but only with characteristic indirectness in the bitterly controversial Bradlaugh case when Lord Denman, unabashed by rebuffs in earlier cases, sought to add his dissent to Blackburn’s but was once again ignored and unsupported.74
The 1876 Act did ensure that any appeal would be heard by a minimum of three peers drawn from prescribed categories, namely the Lord Chancellor (who when present would chair their deliberations75), the new lords of appeal in ordinary, and peers who had held specified ‘high judicial offices’ for a minimum of two years; this restriction was presumably a safeguard against another ‘Colliery explosion’,76 but since the lords of appeal might be appointed direct from the bar it does not seem a very necessary precaution.77
The lords of appeal in ordinary were given non-hereditary baronies and sat in the Lords only while they held office. They were paid £6,000 per annum, with a pension of £3,750 if they had accumulated 15 years’ judicial service.78 Initially restricted to two, they might be augmented when successive pairs of the four salaried members of the Judicial Committee of the Privy Council (JCPC) retired or died.79This was presumably an economy measure, and even the initial appointments—Blackburn and Gordon—were delayed for several months.80 The third law lord (Fitzgerald) was appointed in 1882 and the fourth (Hannen) in 1891. This balance, two from the English bench or bar, one apiece from Scotland and Ireland, was more or less maintained, Macnaghten succeeding Blackburn and Hannen being followed in rapid succession by Bowen, Russell, and Davey.81 (p.539) Davey was a considerable presence from 1894 to 190782 but his successors, Collins and Robson, were both ailing and short-lived.83 Moulton followed Robson in 1912 and in the next year, when Parker replaced Macnaghten, two new lords of appeal (Sumner and Dunedin) were added in fulfilment of a promise to strengthen the JCPC.84 After Gordon, Scottish representation was in the distinguished person of Watson from 1899, then the much less imposing Robertson and later (from 1909) the exigent and unpopular Shaw.85Neither of Fitzgerald’s successors—Morris and Atkinson—was in the top rank and between 1899 and 1905 there was no representative of the Irish bar, for Lindley had been elevated from Master of the Rolls to accommodate Webster.86
After 1880 only the Lord Chancellor and the Lord Chief Justice among the English judges automatically received a peerage, so the government of the day had a considerable discretion in the composition of the Lords’ judicial element. No one could cavil about the first judge to be made a peer, Sir George Bramwell in 1882, but though Gorell and Mersey were respectable choices, Lopes was mediocre and Field deaf and irascible, while to make Henry Hawkins Lord Brampton, was questionable, since he interested himself only in criminal cases, which did not reach the House anyway.87 Two Scottish judges, Shand and Kinnear, were more useful additions, and though none was appointed from the Irish bench, two Irish Lord Chancellors in O’Hagan and Ashbourne sat with some regularity.
Experience soon suggested that the eligible categories needed to be extended, and in 1887 they were expanded to include retired lords of appeal, so retaining Blackburn’s services.88 During the bill’s passage Selborne procured a further (p.540) enlargement, to unpaid members of the Judicial Committee, which accommodated Hobhouse, and later Sir Henry James.89
These arrangements meant that the judicial complement of the House fluctuated. The Law List named 10 in 1883, 12 in 1893, 11 in 1903 and again in 1913. The figure is not very meaningful, however, since there were always some qualified peers who were too elderly or infirm to sit or (like Lord Ashbourne) were regarded as a liability.90
No provision was made for the Lords to sit in divisions and no firm convention emerged as to the appropriate number of judges. Some critics had felt the minimum too low,91 but in the first decade a bench of only three or four was common, though later five seems to have become the most usual number, with seven in particularly important cases.92 This latitude lent itself to manipulation by the Lord Chancellor and this may have become more frequent as the number of appeals with a controversial political element rose. Halsbury and Loreburn both seem to have sought favourable panels in such cases,93 but, as Heuston’s painstaking analysis of Halsbury’s manoeuvres in Quinn v.Leathem 94 shows, it is dangerous to infer it too readily simply from the composition of the House.95The great trade union cases of Allen v. Flood and Quinn v. Leathem give a misleading impression of the Lords as a tribunal where divided opinions were common, for in fact, at least in the 1880s, it was ‘a remarkably unanimous body’.96 It was also one in which the appellant’s prospects were none too good, studies suggesting that fewer than one-third of those from England would succeed, though Scots and Irish fared somewhat better.97
Jurisdiction and business
The 1876 Act made no attempt to restrict appeals, though neither did it provide any facility to ‘leapfrog’ the new ‘Intermediate Court of Appeal’ as had been (p.541) possible with the court of Appeals in Chancery.98 Apart from divorce, where appeals were confined to questions of law, and bankruptcy, all major civil actions might be taken to the final appeal,99 though the criminal jurisdiction was not bestowed until 1907, with the first appeal in 1910.100 A few statutes expressly ousted or restricted an appeal,101 but more important were limits imposed by the House itself, which would not entertain an appeal from an order for costs simpliciter, nor a question of practice unless it caused serious injustice.102 With no effective sifting mechanism other than the expense of proceedings, it remained a matter for frequent grumbling among the law lords that many appeals before them were trivial or simply questions of fact.103
During the 1870s, probably partly on account of the creation of a Scottish appeal court, England overtook Scotland as the chief source of business. For a time there were still years when the latter predominated, but averaging cases over the years 1876–80 England supplied 31.2 out of 60 a year; across 1896–1900, 50.4 of 71.2; and from 1906 through to 1910, 63.6 of 90.104 Of the 89 appeals presented in 1910, 64 were English, 18 Scottish and 7 Irish.105 There was no dramatic rise in the overall number of appeals, and in the 1890s it was estimated that only 7 per cent of Court of Appeal judgments were appealed.106 There were appreciable fluctuations in the level of business (only 63 cases were heard in 1913 as against 108 in 1909) but overall it began to rise sufficiently to cause delays when combined with a similar increase in the Privy Council.107 Even so, since the House sat on fewer than 100 days a year, there was plenty of scepticism among MPs when the two extra law lords were demanded in 1913.108
The substance of the appeals changed too. Among the English cases common law matters became much more prominent, presumably because of the greater facility for appeal now that it had no longer to be grounded in a writ of error. Statutory interpretation, mostly of local and private acts, was increasingly at issue, and whereas at the end of the century the bulk were family or commercial matters, by 1910 there was a marked rise in contractual disputes and torts, (p.542) especially workmen’s compensation. Corporations and public authorities were increasingly prominent among litigants, and tax cases were becoming a more regular part of their lordships’ workload.109
Organization and procedure
The hybrid features of the jurisdiction were replicated in its clerical arrangements. The Judicial Office was part of the House’s clerical establishment, and comprised a chief clerk (in effect the registrar) and three juniors not employed exclusively on judicial work.110 They were appointed by the clerk of the parliaments, Sir H. J. L. Graham for 31 years from 1885. A former master in lunacy, Graham had also been the Lord Chancellor’s principal secretary and he ensured that the potential friction inherent in a situation where the Lord Chancellor necessarily exercised a practical dominion over the Judicial Office while the clerk retained formal authority was minimized.111 Nevertheless, it exasperated Muir McKenzie, whose efforts to ‘confer Home Rule on the Judicial Office’ were fruitless,112 since the forces of conservatism at this level were too strong for any Lord Chancellor.113
There were some significant changes in procedure following the 1876 Act, when the standing orders were consolidated.114 At last hearings could be held when Parliament was prorogued or dissolved and the delivery of judgments were no longer liable to be delayed by those interruptions.115 Writs of error, save in criminal cases, were abolished and all English appeals were to be made by petition.116 All would henceforth be subject to the requirement for security, which was given teeth by adding to the ineffective £500 recognizance the need for a bond or cash deposit of £200.117 A side-effect of that, however, was more attempts to invoke the in forma pauperis procedure. Cairns had strongly attacked abuses in this procedure in 1874,118 but it was Herschell, following a (p.543) collective protest inBlair v. North British Insurance Co,119 who put through a short Act in 1893 referring all such applications to the House’s appeal committee for preliminary scrutiny.120
There were two other notable changes. One was that the judges ceased to be summoned for their opinion. This seemed to be slipping into obsolescence in the 1870s but was revived in the great case ofDalton v. Angus & Co in 1880121 and for the last time, with very questionable motives and propriety, at Halsbury’s insistence in Allen v. Flood. 122 The second change was that the House relaxed its stance against granting costs to a successful appellant. What Westbury had began, with surprising casualness in 1871,123 became well established in 1877, though never a settled practice.124 The cost of taking a case to the Lords remained high, however, partly through the continued insistence on multiple copies of printed cases (which grew longer as the documentation in commercial cases expanded) and partly because of the insistence on employing the most fashionable counsel at inflated fees. In 1900 the averaged taxed cost of an appeal allowed to a successful party was £354, but by 1910 it had risen to £448. The full cost was considerably higher.125
As in the High Court, cases were beginning to take longer, and by 1914 the average time was creeping up from one-and-a-half days to two.126 In some respects the Lords were decidedly brisk; in particular they frequently denied the respondent’s counsel his opportunity, convinced that the appellant had failed to make his case.127 Against that, however, they developed a tendency to interrupt and sometimes harass counsel. Herschell was the most notorious exponent, leading to Lord Morris’s celebrated aside that he now understood what was meant by molesting a man in his trade.128 Watson was another offender,129 and there was relief when under Haldane the court became once more a ‘listening’ one.
(p.544) Reserving judgment became much commoner, the House following the Court of Appeal in adopting written judgments; judgment was reserved in about half the reported cases (which perhaps exaggerate its prevalence) in 1914. 130
Judgments and jurisprudence
Little is known about how the Lords went about framing their judgments.131 It gradually became commoner for a panel member simply to record his concurrence in the judgment, either of a particular colleague or generally.132 In 1877–8 only Gordon regularly did so (probably because of ill-health), but in 1908 there were instances in 33 out of 41 reported cases, and it had become common for just one substantive speech to be given.133 Even those who have been named as frequent dissenters—Bramwell, Morris, and Davey for instance134—did so relatively seldom. Cases in which their lordships were evenly, or almost evenly, divided are strikingly few,135 though sometimes judges indicated disagreement without actually registering a dissent, like Blackburn in Foakes v. Beer 136and Morris inComber v. Leyland.137 Experience in the Judicial Committee, where dissenting opinions could not be given, may have had some influence on the little-studied evolution of this practice.
Since the Lords did not sit in plenary session but with a fluctuating body of judges, it could not be expected to produce a coherent jurisprudence, especially since its caseload was a haphazard mixture of the portentous and the trivial; thus in 1898, the Law Reports volume which features Allen v. Floodand London (p.545) Tramways Co v. LCC 138 also contains minor cases on party walls, sewers and parish settlements.139
However, there were variations in the Lords’ outlook over time which reflect changes in membership.140 In the 1870s, dominated by past and present Lord Chancellors, it was inclined to eschew the detailed examination of facts and decided where possible upon principle, fitting in the previous decisions with more (Selborne and Hatherley) or less (Cairns) meticulousness.141 This court would have enmeshed companies and other businesses within a framework of equitable obligations,142but it was soon succeeded by one dominated by common lawyers, who in Salomon and Co v. Salomonand Derry v. Peek reasserted the primacy of the common law’s particularist approach.143 In turn this period in which laissez-faire and freedom of contract held sway gave way to one in which the Edwardian judges were readier to imply terms in commercial contracts.144
Another trend is unmistakable: the Lords were conducting a dignified retreat from any openly acknowledged law-making role. Judicial reticence probably owed something to a collective unease; after the Third Reform Act in 1885 the legitimacy of unelected judges as law-makers was highly questionable. The controversies aroused by their decisions in the great sequence of trade union cases may well have strengthened this feeling: the constitutional crisis of 1911 almost certainly did.
One manifestation of this concern was an ostensible, and sometimes ostentatious, adherence to the strict affirmation in London Tramways of the self-denying ordinance that the Lords would not overturn their earlier decisions.145 The case is actually a rather flimsy basis for such a portentous doctrine146 and it was widely regarded as merely endorsing a position held since 1860 if not earlier, albeit with exceptions, although judges had from time to time bemoaned their inability to overturn inconvenient precedents.147
(p.546) In reality the doctrine of stare decisis was never operated in so rigid a fashion as Halsbury’s formulation would suggest: indeed no one was more adept and unscrupulous in escaping the chains of precedents as Halsbury himself.148 Others were more subtle but equally effective, culminating in the sophistry of Haldane’s reshaping of the law of collateral advantages in mortgages in Kreglinger (G & C)v. New Patagonia Meat and Cold Storage Co.149 The importance of London Tramways, however, is its unequivocal avowal that the law lords did not make law: they only ascertained it, and once discovered it could not be altered save by Parliament.150
The second manifestation of this reticence was in the construction of statutes, where the dominant approach was increasingly to disclaim any attempt to uncover and implement the underlying policy of an enactment, but rather to apply the so-called ‘golden rule’, giving each word and phrase its ‘normal’ or ‘natural’ meaning, though in practice this distinction was often unworkable and probably no judge was rigidly consistent in applying it. However, in workmen’s compensation, although differing attitudes could be distinguished,151 in general the Lords were more prone to adopt a purposive construction than Collins MR’s rigidly literalist division of the Court of Appeal.152 In contrast, there were signs that an initially even-handed approach to tax statutes was yielding to one which insisted that the revenue must bring the taxpayer within the narrowest, most literal reading of the statute in order to exact tax.153 In general the law lords’ public stance was that they were not junior partners in the legislative process, but disinterested, dispassionate technicians. Indeed, when the legislature positively invited judges to develop the law, as with the ‘just and reasonable’ charges clauses of the Railway and Canal Traffic Acts, some of the most eminent recoiled with almost comical dismay.154
This attitude reflected a gradual retreat from the boldness, and sometimes dogmatism, of some High Victorian judges into a substantive formalism which treated the common law as ‘a self-contained objective system of rules’.155 Equity’s (p.547) ‘capacity for parthogenesis’ withered, the potential of the adventurous decision in Hughes v. Metropolitan Railway 156 remaining to be exploited by Lord Denning. Inasmuch as considerations of public policy openly informed decisions at all, they usually embodied a rather outmoded adherence to laissez-faire, a stance which allowed cartels to strangle rivals157 and gave anti-competitive arrangements in restraint of trade free rein.158 In tort the same thinking informed a drift towards insistence that liability should be fault-based159 and a narrow view of the scope of fraud.160 There were of course cases which invited a broad statement of the law—Macnaghten’s abiding re-ordering of ‘the wilderness of legal charity’ into four categories is an example161—but the House did not actively seek such ambitious tasks. 162
In the light of the above, there was also a predictable reluctance to engage in any supervisory review of executive power. In Metropolitan Asylum District v. Hill the Lords took a narrow view of the scope of delegated powers of a public body where they encroached upon private property rights,163 but when it came to reviewing decisions made under delegated powers the furthest they would go was to enforce procedural due process, declining to investigate the propriety of actual decisions.164 Haldane aspired to separate law from politics altogether165 and with their almost complete abdication in Local Government Board v. Arlidge,166 the law lords took a long step towards doing so.
2. The Privy Council
The Creation of the Judicial Committee
The Judicial Committee of the Privy Council is an enduring monument to the law reforming zeal of Henry Brougham.167 Brougham was temperamentally (p.548) and intellectually better suited to sweeping schemes for new or remodelled institutions than to the careful reorganization of complex ones like the court of Chancery, and his plans for the Privy Council were characteristically bold. He envisaged a body having the characteristics of a court of law while retaining those features indispensable to its status as a committee of the Privy Council.168 It would handle not only appeals from overseas possessions but also from the court of Admiralty and the ecclesiastical courts, which presently lay to the court of Delegates, and would be able to grant full divorces (a vinculo).169Brougham did not achieve all his objectives; the divorce proposal was altogether too ambitious and the Privy Council’s judicial hearings would not be conducted exclusively by legally trained privy councillors; nor would its membership include salaried judges. Nevertheless, it was one of his biggest achievements in law reform.
Brougham had attacked the Privy Council and the court of Delegates in their judicial capacities in his great law reform speech of February 1828,170 and though thwarted in his proposal for an all-embracing investigation into the administration of justice, he secured a commission to examine the church courts, and once he became Lord Chancellor persuaded it to issue a preliminary report which condemned the Delegates and recommended the Privy Council, if suitably provided with men ‘conversant with legal principles’ and with adequate sitting days, as its replacement.171
Yet Brougham had unsparingly exposed many defects in the Privy Council. Appeals were heard by an open committee with no guarantee that it would be guided by legally qualified councillors. Few such men sat regularly and the Master of the Rolls, with fewer commitments than other judges, had emerged as the dominating figure. The standing order prescribing its sittings had long been abandoned and it sat infrequently, usually only when the courts were not in session. There was no distinct bar, and Brougham was one of the few to appear regularly.172 Such a body could only function satisfactorily while business remained modest and the Master of the Rolls generally respected, and in the 1820s that was no longer the case.
Weaknesses had been masked while Sir William Grant was Master of the Rolls by his exceptional knowledge and understanding of the civilian laws which were (p.549) often in issue and his capacity to decide quickly and satisfactorily.173 His successors, Plumer and Gifford, were second rate in comparison and Leach exposed his own and the court’s deficiencies. In two well publicized cases Leach disarmingly confessed his own (pardonable) ignorance of the applicable laws, and privately sought and adopted the views of foreign jurists.174 Further, he openly deplored and rejected Knapp’s published reports, declaring that ‘the decisions of the privy council could not be considered as a correct exposition [of the law]…’.175 Grant’s departure was also followed by a marked rise in actual and potential business. Just when the courts were beginning to recover from the deep trough in litigation the Privy Council suddenly lost a major source of appeals, the American colonies. However, it soon began to acquire new sources. More than 20 territories were hoovered up during the French wars, and between 1815 and 1826 appeals came in from a forbidding range of legal systems: French, Spanish, Dutch, Danish, Hindu, Mohammedan, and Buddhist. Coupled with the peculiarities of the lesser islands of the British Isles, they made a daunting proposition for even the best informed court.176
Returns bolstered Brougham’s argument that the Committee was unable to dispose of cases with reasonable dispatch. Of 517 appeals lodged between 1814 and 1826, only 243 had been disposed of, and of those only 129 had been actually heard.177 Moreover, the rate at which they were disposed of (319 in 120 sitting days) supported Brougham’s claim that they were sometimes heard ‘in a manner the most summary that can be conceived in this country’, hardly surprising if the notoriously hasty Leach was in charge.178 Indian appeals were the immediate cause for concern, for although they constituted little more than 10 per cent of the total, they were disproportionately represented among the undisposed of causes. To blame suitors for failing to set the appeal effectively in motion by appointing agents and putting them in funds, made no allowance for conditions in India, and did not explain scandalous cases like that of the revenues of the Ranee of Ramnad, an appeal pending since 1814 which paralysed a large territory because of the uncertainty over property rights.179
(p.550) The Tory administrations responded to criticism by persuading eminent judges to attend more frequently,180 but business in Chancery and King’s Bench was already outstripping the available judge-power. Moreover, by transferring the appellate work of the Delegates to the Privy Council, Brougham used the addition of this important and abstruse business as a further argument for reforming the latter,181 and when he presented his grand scheme the only question was whether, as the Lord President (Lansdowne) doubted, it was ‘necessary to the purpose to create a new court of an anomalous character’ or whether further steps to boost the attendance of judges might suffice.182Lansdowne was urged to oppose Brougham’s plans by the clerk to the Council, Charles Greville, backed by ‘Mr Over-Secretary Stephen’ of the Colonial Office, both driven partly by selfish motives.183 Other cabinet members mistrusted Brougham, suspecting that he had even more expansive plans to enhance his own position. They also resisted the complete judicialization of the Council for policy reasons, wishing to retain some means of influencing decisions on appeals with a public interest element or involving imperial policy.184 Brougham had to retreat from requiring the Lord Chancellor’s attendance at hearings and had to preserve a lay element in the shape of present and past lord presidents. More important in the long term was the substitution for his four salaried judges of the offer of an enhanced pension for any four retired judges willing to undertake regular attendance. Nevertheless, it is striking how much of Brougham’s scheme was left intact and how little parliamentary attention it received during its passage.185
Jurisdiction and Business
Safford and Wheeler’s manual of Judicial Committee practice of 1901 ran to 1194 pages, many of them setting out the regulations governing appeals from the greatly expanded British Empire.186 No serious attempt had been made to harmonize these regulations, which sometimes originated with the governments of the (p.551) territory and sometimes with the Colonial Office or Foreign Office; the Judicial Committee was seldom consulted.187 The results reflected little credit on imperial administration, being marked not only by irrational distinctions but by glaring omissions and occasional outright blunders. Thus the inhabitants of Heligoland, taken from the Danes in 1807, had no right of appeal until 1856 and the inhabitants of New South Wales were inadvertently deprived of theirs between 1828 and 1850.188
The only general enactment on colonial appeals was the Judicial Committee Act 1844, which remedied injustices arising from the requirement in most territories that appeals lay only from the local court of error or appeal. This usually comprised the governor and his executive council, in some places sitting infrequently and in others of questionable integrity.189
There were two common restrictions upon the right to appeal. Save for Bengal, Bombay, and Madras, no appeal lay as of right from interlocutory orders, and few colonies permitted appeals in criminal cases.190 Other restrictions mostly involved money limits, time limits, and security for costs. Minimum figures for sums at issue varied widely and with no discernible pattern, but £500 was common and some were much lower.191 There were similar variations in the requirement for security, sometimes within the discretion of the local judges, which could lead to abuses.192 Time limits were more standard, usually requiring notice to be given to the local court within 14 days and the appeal to be prosecuted by lodging papers with the Privy Council office within a year and a day. 193
These rules, however, might be set aside by the Judicial Committee granting an application for ‘special leave’.194 No general rules were laid down, but leave was commonly given where there was no appeal as of right (as in New South Wales between 1828 and in 1850), where the sums at issue were below the minimum required but there was an important issue at stake; or to ensure the trial of matters touching on statutory construction, jurisdiction, or otherwise of public importance. It was also generally given where there was a credible allegation of an abuse in the administration of justice.195 The Committee was less (p.552) easily persuaded to waive time limits where the appellant had been remiss,196 and was staunch against granting special leave to appeal from a criminal conviction, from a well-grounded apprehension that such applications would become routine, especially in capital cases. Exceptional cases from the Falkland Islands in 1863 and New South Wales in 1867 made a breach and were followed by a steady trickle.197 This willingness to entertain criminal appeals produced indignation in Australia,198 and when the possibility of an appeal from the rebel Louis Riel arose, the Canadian response was to ban such appeals in their criminal code of 1888, though it was subsequently declared unenforceable.199
In fact the Canadians had contemplated a drastic curb on appeals generally, which some felt were abused by corporations. A bill of 1875 for the establishment of a supreme court for the whole dominion included a clause barring appeals of right from its decisions, leaving open those accepted by prerogative. It was probably intended to exclude any role for Selborne’s proposed ‘imperial court of appeal’ and suggests confusion over the nature of ‘special leave’ appeals, but it was strongly opposed by Cairns, and the Privy Council registrar wrote a vigorous defence of the right of appeal.200 The Colonial Office was less resolute and the act was not disallowed, but the clause was ineffective against grants of special leave, which was freely given in a series of cases which strengthened hostility to the Judicial Committee in some quarters. An initial decision in favour of the federal government201 was followed by several cases in which the Committee, piloted by Lord Watson and later by Haldane, interpreted the British North America Act in favour of provincial governments, and though no further attempt was made to abolish the right of appeal there was little enthusiasm for it either.202
In Australia too there were moves to impose restrictions in conjunction with the creation of a high court for the whole territory. A bill brought to London in 1897 provided that ‘[n]o appeal shall be permitted to the Queen in Council in any matter involving the interpretation of this Constitution or of the Constitution of a State, unless the public interests of some part of Her Majesty’s Dominions,(p.553) other than the Commonwealth or a State, are involved…’.203 Determined opposition by Chamberlain as Colonial Secretary drastically narrowed the range of excluded appeals, but more importantly, it impelled him to hold out the possibility of a ‘great Imperial Tribunal’, a chimera which made its appearance at a succession of imperial conferences.204
The Committee’s jurisdiction in domestic matters underwent significant changes. Brougham’s renewed attempts to add divorce, particularly in 1844, never succeeded,205 but Admiralty work remained, together with appeals from the Prize court, which Brougham had added in 1833.206 Acts of 1835 and 1839 granted and enlarged powers to extend the life of a patent and Brougham later consolidated the jurisdiction.207 Lyndhurst granted the Judicial Committee a more limited role in copyright, to license republication of books by a deceased author where the copyright owner refused permission.208 A harbinger of things to come—the Judicial Committee as a repository for appeals lacking a suitable home—was the Endowed Schools Amendment Act 1873.209 However, in 1876 Admiralty appeals were removed to the House of Lords (though Prize appeals remained) and the patent jurisdiction was taken away in 1907, leaving a greater emphasis on its imperial role.
Overseas cases generally held little interest for the British public, but the Judicial Committee’s role in the religious controversies of the mid-nineteenth century brought it inescapably into the public eye.210 No one had foreseen that the Privy Council would become a forum for theological dispute since the Delegates had seldom been one.211 Nevertheless it became the final court of appeal for cases(p.554) of clerical misconduct under the Church Discipline Act 1840 and the Clergy Discipline Act 1892.212 It had a similar role under the Public Worship Regulation Act 1874, Archbishop Tait’s misguided attempt to streamline the process for prosecuting allegations of liturgical heterodoxy.213Accusations that clergymen used bad language or solicited alms under false pretences were manageable,214 but in judging the compatibility of their beliefs, writings, or liturgical practices with the teachings of the Church of England as the Gorham case required, the Judicial Committee was on a hiding to nothing.215 The line between law and theology could not easily be drawn216 and such was the intensity of the religious controversies of the mid-nineteenth century that a losing party before the court of Arches, buoyed by the prospect of financial support from high or low church organizations, would readily mount a challenge,217 and neither side would gracefully accept an adverse verdict from a ‘pseudo-ecclesiastical tribunal’ like the Judicial Committee.218
The result was a whole series of high profile cases which constitute ‘some of the oddest litigations in English history’, among them the Essays and Reviews case in which famously if inaccurately Lord Westbury was said to have ‘dismissed Hell with costs and [taken] away from orthodox members of the Church of England their last hope of eternal damnation’.219 Gorham was reported at a length of 277 pages and gave rise to an outpouring of over 140 pamphlets.220 It was followed, inter alia, by Denison,Bennett and, the most celebrated, ‘Essays and Reviews’.221 Cases turning on pure doctrine came to an end with Voysey in 1871,222 but were (p.555) succeeded by fierce quarrels about liturgy and ritual.223 That notorious stronghold of ritualism St. Barnabas, Pimlico, had already been the subject of litigation over a stone altar and other disputable furnishings in 1857,224 and now candles, confessions, denial of access to the sacraments, the ‘eastward’ position of the priest celebrating the Eucharist, and an assortment of esoteric but controversial ecclesiological questions were contested, most famously in the long-running attempt to bring the indomitable Alexander Mackonochie into line.225 Privy Council judges were doubtless thankful that after the case against Bishop King in 1892226 they finally petered out, though still arousing fierce local passions. And appeals still came from the Ecclesiastical Commissioners’ decisions to unite benefices under an Act of 1860.227
High churchmen were angered by what they saw as the laxity of the early decisions as to doctrine, and were strongly critical of the Judicial Committee. Their resentment grew when the Committee seemed inclined to greater strictness over ritual and liturgy and it was strengthened when, over the opposition of Archbishop Tait, the prelates were relegated to assessors in the Appellate Jurisdiction Act 1876.228The Ecclesiastical Courts Commission a few years later summed up these criticisms: ‘that the decisions have been dictated by policy; that they have been rigid in the enforcement of a particular standard of ritual conformity, lax in reproving heresy; and opposed to clear principles of theological interpretation’.229 The proposal of the majority for a court of lawyer-judges, who must be Anglicans, summoned in strict rotation to serve on a panel of five was never likely to be acceptable230 and though the Judicial Committee’s record in ecclesiastical cases was undistinguished, no other tribunal would have fared much better.
For the first 25 years or so of its existence the flow of business was fairly constant at between 40 and 60 cases a year. Between 30 and 40 per cent came from the British Isles, with ecclesiastical causes somewhat outnumbering (p.556) patents and Admiralty cases. Business from the church courts predictably fell away after 1857, however, whereas Admiralty and (especially) Prize cases were boosted by the Crimean War. Among overseas providers, India was always the biggest, with roughly ten a year as against around 18 from all other possessions put together.231 The others began to rise in the 1870s, Canada and Australia featuring more strongly while West Indian appeals, a major component of the Privy Council’s business early in the century, declined along with the prosperity of the islands, falling as low as three a year in the 1890s.232 Matters relating to commerce and financial services became more prominent, though land disputes remained the biggest category.233