Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Second Session Thirty-eighth Congress, Part I
Mr. Adams to Mr. Seward.
Sir: I have the honor to transmit copies of the Times of the 15th and 16th instant, containing a report of the proceedings in the House of Lords on the appeal in the Alexandra case. The decision will be given on an early day after the Easter recess.
I have the honor to be, sir, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington, D. C.
The Attorney General vs. Sillem and others.
This case comes before their lordships on appeal from the court of exchequer chamber for the purpose of their considering whether the grave and momentous question raised as to the proper construction to be placed upon the foreign enlistment act is to be determined, or whether all the enormous expense incurred and the vast labor expended in the matter are to be thrown away in consequence of a technical difficulty. The technical point is, however, one of very considerable importance, being whether the learned judges of the court of exchequer have power, under the twenty-sixth section of the Queen’s remembrancer’s act, to make such rules as would give the advisers of the crown in this instance a right of appeal which they did not possess at the time the verdict of the jury at the trial was delivered in favor of the defendants. In consequence of the lord chief baron and the attorney general being unable to agree as to the effect of the direction of the former to the jury at the trial, it was found to be impracticable to present a bill of exceptions, and the alternative of moving for a new trial on the ground of misdirection was adopted. This rule the court of exchequer granted, but discharged upon argument. The attorney general had previously applied to the court of exchequer to exercise a power it was assumed the barons possessed, under the twenty-sixth section of the Queen’s remembrancer’s act, to make rules giving him a power of appeal to the court of exchequer chamber. In accordance with that application the court of exchequer drew up the following rules the day before the rule for a new trial was moved for:
“Court of Exchequer, Revenue Side.
“In pursuance of the provisions contained in the 26th section of the 22d and 23d of Victoria, cap. 21, entitled ‘An act to regulate the office of Queen’s remembrancer and to amend the practice and procedure on the revenue side of the court of exchequer,’
“It is ordered that the following provisions of the common law procedure act, 1854, be extended, applied, and adapted to the revenue side of the court of exchequer:
“‘1. In all cases of rules to enter a verdict or nonsuit upon a point reserved at the trial, if the rule to show cause be refused or granted, and then discharged or made absolute, the party decided against may appeal.
“‘2. In all cases of motions for a new trial upon the ground that the judge has not ruled according to law, if the rule to show cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal, providing one of the judges dissent from the rule being refused, or when granted being discharged or made absolute, as the case may be, or provided the court in its discretion may think fit that an appeal should be allowed, provided that where the application for a new trial is upon matter of discretion only, as on the ground that the verdict was against the weight of evidence, no such appeal be disallowed.
“‘3. The court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for this purpose
“‘4. No appeal shall be allowed unless notice thereof be given in writing to the opposite party or his attorney and the Queen’s remembrancer within four days after the decision complained of, and such further time as may be allowed by the court or a judge.
“‘5. The appeal herein before mentioned shall be upon a case to be stated by the parties, (and in case of difference, to be settled by the court or a judge of the court appealed from,) in which case shall be set forth so much of the pleadings, [Page 322] evidence, and the ruling or judgment objected, to as may be necessary to raise the question for the decision of the court of appeal.
“‘6. When the appeal is from the refusal of the court below to grant a rule to show cause, and the court of appeal grant such rule, such rule shall be argued and disposed of in the court of appeal.
“‘7. The court of appeal shall give such judgment as ought to have been given in the court below, and all such further proceedings may be taken thereupon as if the judgment had been given by the court in which the record originated.
“‘8. The court of appeal shall have power to adjudge payment of cost, and to order restitution, and they shall have the same powers as the court of error in respect of awarding process and otherwise.
“‘9. Upon an award of a trial de novo by the court, or by the court of error, upon matter appearing upon record, error may at once be brought, and if the judgment in such or any other case be affirmed in error, it shall be lawful for the court of error to adjudge costs to the defendant in error.
“‘10. When a new trial is granted on the ground that the verdict was against evidence, the costs of the first trial shall abide the event unless the court shall otherwise order.
“‘11. Upon motions founded upon affidavits it shall be lawful for either party, with leave of the court or a judge, to make affidavits, in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits.
“‘12. Notice of appeal shall be a stay of execution, provided that within eight days after the decision complained of, or before execution delivered to the sheriff, bail to pay the sum recovered and costs, or to pay costs when adjudged, be given in like manner and to the same amount as bail in error is required to be given under the rules of this court made on the 22d day of June, 1860, or as near thereto as may be applicable, provided such bail shall not be necessary to stay execution in cases where the appellant is the crown, the attorney general on behalf of the crown, or the Prince of Wales or the Duke of Cornwall for the time being.’
“The foregoing rules shall come into operation and take effect forthwith, and apply to every cause, matter, and proceeding now pending.”
Under the power of appeal given by these rules the attorney general brought the case before the court of exchequer chamber, which court, however, by a majority of four to three, rejected the appeal, on the ground that the barons had not power to make the rules in question. This appeal was then brought to reverse the judgment of the court of exchequer chamber.
The attorney general, the solicitor general, the Queen’s advocate, Mr. Locke, and Mr. Thomas Jones appeared on behalf of the crown; Sir H. Cairns, Mr. Mellish, Mr. Karslake, and Mr. Kemplay represented the respondents.
The attorney general and the solicitor general addressed their lordships on behalf of the crown on Friday last.
Sir H. Cairns this morning addressed their lordships for the respondents, and in referring to the making of the rules in question by the court of exchequer, felt assured, notwithstanding he never doubted that the learned judges of the court of exchequer had been throughout actuated by no other motives than those of expediency, propriety, and wisdom, that their lordships would look narrowly to orders which, after one of the litigants had obtained a verdict and judgment, attempted on the application of the other side to give a right of appeal which might neutralize or upset that verdict and judgment. The attorney general had been unable to discover any trace of a precedent for such an act, and he was quite sure no private suitor would have had the audacity to ask a court to make general orders which would affect his particular case so as to give him a right of appeal which he had not before. Looking at the rules themselves, it [Page 323] was difficult to lay the finger upon one which was properly framed. The framers appeared to have entirely misapprehended the meaning of the common law procedure acts, and to have drawn up the rules when laboring under that mistake. Entirely forgetting that the common law procedure acts had to deal with appeals from the whole of the different courts of record throughout the kingdom, they had in their third rule created three courts of appeal from the court of exchequer, viz: the court of error, the court of exchequer chamber, and the House of Lords, using the phraseology of the act in a case which the act did not contemplate. The Queen’s remembrancer’s act authorized certain clauses of the common law procedure acts to be applied and adapted to the revenue side of the court of exchequer, but the framers of the rules had not stated what rules they intended to be applied, or how they were to be adapted. They had left that part of their duty to be carried out by the litigants themselves. The barons of the exchequer might just as well have thrown those acts bodily upon the table, and said that they should be applicable to the revenue side of their court, and have left their suitors to find out in what way they were to be applied, according to their own particular whim, fancy, or interest. Before the passing of the common law procedure acts there was nothing applicable to the judgments of the courts of common law which could properly be called an appeal, and those acts had strictly defined the cases in which an appeal should be given. The legislature had carefully given a right of appeal in a particular way to litigate on the revenue side of the exchequer, and therefore there was no necessity for the extraordinary power claimed by the appellants. If the legislature had desired to give further powers of appeal, why had they not expressly given them? With regard to the 26th section of the Queen’s remembrancer’s act, it had been urged on behalf of the crown that this act had been framed for the purpose of giving the subject ample powers of appeal. Now, he contended the legislature had in view the advantage of both the crown and the suitor in not permitting such an appeal, as every principle touching the collection of the revenue could be decided in the convenient form of a bill of exceptions. It was greatly to the advantage of the crown that vexatious appeals should not be brought, and equally advantageous to the private suitor that the crown should not have a right of a multiplicity of appeals, one after another, as it was proverbial that an enlarged power of appeal was greatly in favor of the litigant with the longest purse, and who pursued his power of appeal with the greatest vigor.
The Lord Chancellor. What actions are now brought on the revenue side of the court of exchequer as between subjects?
Sir H. Cairns. None, my lord.
The Lord Chancellor. Then what do you mean by saying that there is the side of the subject to be looked at in the matter? Under what disadvantages do subjects on the revenue side of the exchequer labor that are not shared by subjects on the plea side of that court?
Sir H. Cairns was speaking as to the relative interests of the crown as plaintiff against the subject as defendant.
The Lord Chancellor remarked that it was stated to be the intention of the legislature to make the practice on both sides of the court of exchequer as nearly as possible identical.
Sir H. Cairns thought that might be done without giving this right of appeal.
The Lord Chancellor said that one of the propositions of the attorney general was that the 35th section of the common law procedure act of 1854 made a certain mode of appeal part of the practice of the plea side of the court, and then the practice of the plea side was transferred to the revenue side, thus transferring the right of appeal.
Sir H. Cairns said that would be found to be an equally fallacious contention with anything advanced by the other side. He then proceeded to put the [Page 324] following propositions to the house: First, that, prima facie, a power to judges to regulate the proceedings of their court, or of applying proceedings to their court, so as to produce a certain effect upon the process, practice, and mode of pleading, would not confer a power of creating a new appeal, as such a power was ordinarily understood to refer only to the practice within the four corners of the particular court mentioned. Secondly, that, prima facie, such a power would not include the practice of the court of appeal or the court of error. Thirdly, that, prima facie, the power to regulate the practice of a particular court might, if there were already an existing right of appeal, and if there were certain steps in reference to such appeal to be taken inside that court, confer a power to regulate such particular steps in that court; but if there were not already in existence that right of appeal, he contended that such a power would not give a power of creating a right of appeal; and, fourthly, that the right of appeal was a right of such a character as that it must be given in plain and direct words.
Lord Wensleydale remarked that the latter point was one that was mentioned by the learned judges of the court of queen’s bench in giving their judgment in the court below, and he wished to know whether there was any express authority for that proposition.
Sir H. Cairns replied that there could be no appeal by inference; it must be clearly and expressly given by statute; at least the plain and ordinary construction of the statute must give such a right. The first point taken on behalf of the crown was that the words “process, practice, and mode of pleading,” had received a peculiar construction, which made them applicable to the whole proceedings in any suit which might originate in a particular court, even when such case was taken before a court of appeal or of error. The learned counsel proceeded to contend that this construction was erroneous, as in several sections of the acts the proceedings in error or upon appeal were dealt with as being totally distinct from that of the original court. He would ask their lordships whether there was any instance in the history of legislation where a court was authorized to say whether there should be a right of appeal from its decisions or not? Undoubtedly it had been left to a court to say whether in a particular case there should be an appeal, but that was totally distinct from a general power of this kind. It was said that this power of appeal was one peculiarly liable to abuse, and, therefore, it required great discretion to be exercised in giving such a right. If that were the case, surely Parliament was the proper tribunal to exercise that discretion, and it was improbable that such a discretion should be left to the court of exchequer to exercise when it thought fit. It was said that without such right of appeal the practice on the plea side and on the revenue side of the court of exchequer could not be assimilated, but he contended that a right of appeal was not included in the “process, practice, and mode of pleading” on the plea side of the court. Unless it could be shown by some act of Parliament that the words “process, practice, and mode of pleading” included the practice of the court of appeal, he denied that they could apply the words in that comprehensive sense.
Lord St. Leonards inquired whether the learned counsel contended that, under the terms of the 26th section of the Queen’s remembrancer’s act, the rules thereby authorized to be made were “alterable” as well as “applicable” from time to time.
Sir H. Cairns considered that although, under the first part of the section, it might well be contended that the rules were alterable, yet under the second part of that section he should agree with the attorney general that they were not alterable. He then argued that, even assuming all that the attorney general contended for, the barons of the exchequer had ample authority to make the rules creating an appeal, they could not be made applicable to a case in which the trial had taken place previously to making of the rules. Even in the case [Page 325] of the common law procedure acts themselves, wherein it was expressly laid down that they were to apply to all cases then pending, it had been held that they did not apply to causes in which the trial had taken place. Therefore, the direction of the learned barons, that the rules were to take effect forthwith and to apply to all cases then pending, could not make them apply to the present case, in which the trial had already taken place.
The Lord Chancellor. Did you take this point in the court below?
Sir H. Cairns said they had not taken that point below, because they found that the preliminary objection was sufficient. He now conten led that inserting the words “that these rules shall apply to all cases now pending,” were ultra vires of the court of exchequer. In conclusion, he desired to refer to a remark of one of the learned judges in the court below, wherein he regretted that so important a case should fail to be decided upon its merits in consequence of a successful technical objection. As the representative of his clients, who had incurred vast expense in defending themselves, whatever his feelings upon the matter might be, he must trust their lordships would not allow their judgment to be influenced by such an argument.
The Lord Chancellor. We must give the same judgment as if the case only involved the sum of £20.
Mr. Mellish, following on the same side, asked whether it could be supposed that the legislature had given to the barons of the court of exchequer power to make rules by which a verdict obtained at the trial should be set aside in a way in which it would not have been set aside at the time the trial took place. The rules did not act fairly between the parties, one of whom had obtained a verdict. One great principle laid down in the law-books was that verdicts must be held sacred, and in criminal matters a verdict could not be set aside. In all acts of Parliament great care was taken not to interfere in cases where a verdict had been returned for one party or the other.
Lord St. Leonards. You say that Parliament itself would not have passed so retrospective a rule as that made by the barons of the exchequer.
Mr. Mellish said that was his contention. These rules had been applied for expressly, and had been granted expressly for the purpose of assisting one litigant to the prejudice of the other. As to the main point before their lordships—namely, the construction to be placed upon the 26th section of the Queen’s remembrancer’s act—he should contend that if the construction suggested by the other side were adopted, the barons of the exchequer might make such material alterations in the law as should alter the respective rights of the parties altogether. Thus, supposing they determined to apply the clause directly that all actions on the plea side were to be commenced by wrt of summons to the revenue side, could it be contended that they could apply such a clause to the foreign enlistment act, or could they apply the power of issuing any injunction in such a manner? Yet if the one power were admitted, why should not the other be admitted? He contended that the power of assimilating the practice of the two sides of the court was strictly limited to cases wherein there existed an analogy between the two sides of the court, such as where there existed a right of appeal on both sides to make the practice respecting such rights of appeal as nearly identical as possible.
The Lord Chancellor here interrupted the learned counsel by observing, that perhaps it would be better to resume the hearing of the arguments to morrow. Did the learned attorney general think he should be able to conclude his reply by 12 o’clock to-morrow, as the house sat as a committee for privileges at that hour?
The Attorney General, in reply, said he would condense his arguments as far as was compatible with his duty, and he thought he might probably conclude by that hour. Their lordships must recollect that a new point of some importance had been raised by the counsel on the other side before their lordships which had not been taken in the court below.
[Page 326]The Lord Chancellor said the house did not wish to press the learned counsel; they merely asked for information.
The further hearing was then adjourned until to-morrow (this day) morning at half-past 10 o’clock.
The Alexandra case.
The noble and learned lords present this morning were the lord chancellor, Lord Cranworth, Lord St. Leonards, Lord Wensleydale, Lord Chelmsford, and Lord Kingsdown.
The attorney general vs. Sillem and others.
The arguments in this very important appeal from the court of exchequer chamber were resumed this morning. The question involved is, whether the 26th section of the Queen’s remembrancer’s act is to be so construed as to authorize the barons of the court of exchequer to give a new right of appeal. The chief points are, whether the words “process, practice, and mode of pleading” are to be held to comprehend the practice of a court of error; and whether, if that question were answered in the affirmative, the barons had power to make rules which were to apply to cases then pending—that is to say, to cases in which a verdict had already been obtained, but in which further proceedings were still possible, final judgment not having been given.
The attorney general, the solicitor general, the Queen’s advocate, Mr. Locke, and Mr. Thomas Jones appeared on behalf of the crown; Sir H. Cairns, Mr. Mellish, Mr. Karslake, and Mr. Kemplay represented the respondents.
The attorney general and the solicitor general addressed their lordships on behalf of the crown on Friday last, and Sir H. Cairns and Mr. Mellish argued on behalf of the respondents yesterday.
Mr. Mellish this morning concluded his address by citing numerous authorities to support his proposition that there can bo no appeal without express statutory enactment, and that it could not be created by mere inference.
The Attorney General, in reply, was desirous of removing from their lordships’ minds any idea of the crown having acted with animus in this case. In the court of exchequer, when the difficulty as to preparing the former bill of exceptions arose, the court suggested that it would be better for him to move for a new trial, stating that an appeal would lie from their decision under the common law procedure acts, the court being then of opinion that the rules they had already made were sufficient for that purpose. His learned friend, the solicitor general, however, drew his attention to the fact that the rules then in existence were not sufficient to give a power of appeal. On his making a statement of the circumstances to the court of exchequer the learned judges requested him to look into the matter, and if the rules were not sufficient, in consequence of the great importance of the case, they would do all in their power to give an appeal in order that the law upon the construction of the foreign enlistment act might be finally determined. In accordance with this request he had carefully looked at the various statutes, and the result of his examination was, that he considered himself justified in reporting to the court of exchequer that the rules then in existence were not sufficient to give an appeal, but that their lordships, under the provisions of the 26th section of the Queen’s remembrancer’s act, were empowered to make such rules as would give such a right. Upon this [Page 327] their lordships drew up the rules in question, which were as much in favor of one party as of the other. He merely stated these facts to show that the crown had put no pressure on the court of exchequer in order to get an appeal in this particular case.
The Lord Chancellor. We perfectly understand that to be the case. The pressure came from the court itself.
Sir H. Cairns explained that he had not the slightest intention of imputing any animus on the part of the crown. While attributing the very best possible intentions to all parties engaged in the matter, he merely said that, under the peculiar circumstances of the case, the respondents were entitled to have these rules narrowly looked at.
The Attorney General then proceeded to reply upon the arguments adduced on the other side. He pointed out how little had been done by the legislature in the way of the application of the provisions of the common law procedure acts to the court of exchequer in the Queen’s remembrancer’s act, and how large and important was the power they had given to the barons to apply the provisions of those acts to the practice of their court, and this he considered would be a sufficient answer to the argument of the other side that the legislature would not leave so important a discretion as to creating an appeal to the judges of that court. He contended that the legislature had left a power to the barons of regulating the proceedings in error analogous to that now claimed for them respecting appeals, showing the confidence the legislature had in the discretion of those judges.
Lord St. Leonards. And therefore gave them power to regulate something they did not mention.
The Attorney General should contend that the legislature did mention the latter power in the general terms they made use of. Having touched upon several minor arguments made use of by the other side, he proceeded to show that the proceeding to error was well known to be matter of procedure in the court below, and that the case never left the jurisdiction of the court in which the cause originated, even when taken into a higher court upon appeal. With regard to the question as to the retrospective action of the rules, he contended that the new rules would justly apply to all proceedings in any cause subsequent to the passing of such rules. Now the rules did not apply to the verdict, but they did most undoubtedly apply to the motion for a new trial, which was made after the rules were issued.
At the conclusion of the arguments the lord chancellor said the house would take time to consider their judgment. Judgment deferred accordingly.
After the parties had left the bar of the house their lordships consulted for a considerable time, and at length the lord chancellor announced that on Thursday next the house would state on which day they would give judgment.