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.

[Extract.]

No 651.]

Legation of the United States, London, April 8, 1864.

Sir: As Mr. Evarts does not appear yet to have returned from his visit to Rome, I transmit a report, in the Times of yesterday, of the decision of the House of Lords on the appeal in the case of the Alexandra. It appears that here, as in the courts below, there was a difference of opinion. The case has thus, after passing through the ordeal of all the courts, been virtually decided by Chief Baron Pollock’s summary instructions to the jury on the first hearing, understood by them in a different sense from that which he claims to be the true one. All the rest has been a mere contest about forms. The government has been completely baffled in its honest endeavor to obtain a legal base of action against a flagrant violation of the neutrality of the kingdom, and is thrown back upon the task of commencing the work all over again. There never was such a comedy performed on a grave subject in the whole history of law.

* * * * * * * * *

I have the honor to be, sir, your obedient servant,

CHARLES FRANCIS ADAMS.

Hon. William H. Seward, Secretary of State, &c., &c., &c.

The Alexandra case.

APPEALS.—HOUSE OF LORDS, APRIL 6.—JUDGMENT.

Their lordships sat to-day at half past 2 o’clock. The noble and learned lords present were the Lord Chancellor, Lord Cranworth, Lord St. Leonards, Lord Wensleydale, Lord Chelmsford, and Lord Kingsdown.

The Attorney General vs. Sellim and others.

Their lordships delivered judgment in this great cause which originally involved questions of such vast importance, but which has finally been decided upon the simple technical points as to the proper meaning of the word “practice” as used in certain sections of the Queen’s remembrancer’s act. It is scarcely necessary, under the circumstances, to do more than simply state the fact that a seizure of the ship Alexandra having been made, it was followed by an information being filed by the crown against the defendants, to ascertain by the verdict of a jury whether at the time of such seizure the condition of the vessel brought her within the provisions of the foreign enlistment act, 59th George III, cap. 69. The trial commenced on the 22d of June last before the lord chief baron and a special jury, and terminated on the 24th of that month in favor of the defendants. The late Sir William Atherton, the then attorney general, conducted the prosecution, and before the finding of the verdict proposed to tender a bill of exceptions as to a portion of the judge’s ruling. Some difficulty arising in consequence of his lordship refusing to accept the interpretation of the attorney general of portions of his summing up, it was suggested that the better course would be to move for a new trial. Baron Bramwell, however, foresaw that some difficulty might arise upon the question whether the common law procedure act applied to proceedings like those before the court, and that, therefore, in the event of the application for a new trial being refused, there would be no appeal from the decision of the court of exchequer. The common law procedure act, which to a certain extent assimilated crown proceedings to civil actions, did not comprehend the case of an appeal from a decision making absolute or discharging a rule, and he thought the matter very doubtful. In order to remedy this defect, the attorney general moved to apply the common law procedure acts of 1852 and 1854 and the rules of pleading and practice on the civil side of the court to the revenue side under the 26th section of the Queen’s remembrancer’s act, 22d and 23d Victoria, cap. 21. That section states “that it shall be lawful for the lord chief baron, and two or more barons of the exchequer, from time to time to make all such rules and orders as to the process, practice, and mode of pleading on the revenue side of the court, ‘and as to some other things,’ as may seem to them necessary and proper, and also from time to time, by any such rule or order, to extend, apply, or adapt any of the provisions of the common law procedure act, 1852, and the common law procedure act, 1854, and any of the rules of pleading and practice on the plea side of the said court to the revenue side of the said court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of said court.” Their lordships, after some consideration of the matter, on the 4th of November, 1863, the eve of the motion for a new trial being made, issued the following rules:

“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.

“‘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 hereinbefore 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, 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 costs, 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.”

The court of exchequer dismissed the application for a new trial, and, under the power of appeal assumed to be given by these rules, the attorney general took the case upon appeal before the court of exchequer chamber, who, however, a majority of four to three, rejected the appeal, on the ground that the barons of the exchequer had not the power to make such rules under the authority of the Queen’s remembrancer’s act. The present appeal was then brought to reverse the judgment of the exchequer chamber.

The attorney general, the solicitor general, the Queen’s advocate, Mr. Locke, and Mr. Thomas Jones appeared on behalf of the crown; and Sir H. Cairns, Mr. Mellish, Mr. Karslake, and Mr. Kemplay represented the respondents.

The case came before the House of Lords on the 11th, the 14th, and the 15th of last month, when, after hearing the very elaborate and learned arguments of the counsel on either side, their lordships took time to consider their judgments, which were now delivered as follows:

The Lord Chancellor. My lords, this appeal depends on the question whether the rules made by the court of exchequer on the 4th of November, 1863, are warranted by the power contained in the 26th section of the statute of the 22d and 23d year of the Queen, commonly called the Queen’s remembrancer’s act. The second common law procedure act, which passed in the year 1854, contains many important enactments with reference to the jurisdiction of the superior courts of common law, and some of the most important are the provisions that create new rights of appeal. In jury trials at common law grave questions frequently arise, and are decided on motions for a new trial, or on rules to enter a verdict or a nonsuit; but from the decisions of the court so given there was not before the act of 1854 any right of appeal. The creation of a new right of appeal is plainly an act which requires legislative authority, and by which the court from which the appeal is given, and the court to which it is given, must both be bound, and that must be the act of some higher power. It is not competent to either tribunal, or to both collectively, to create any such right. Suppose the legislature to have given to either tribunal—to the court of the first instance, and to the court of error or appeal respectively—the fullest power of regulating its own practice or procedure, such power would not avail for the creation of a new right of appeal, which is in effect a limitation of the jurisdiction of one court, and an extension of the jurisdiction of another. A power to regulate the practice of a court does not involve or imply any power to alter the extent or nature of its jurisdiction. Accordingly it was necessary in the act of 1854 not only to give new rights of appeal, but to define and bind certain courts to entertain the appeals so given, and this is done by the 36th section of the act, which declares that the court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for the purposes of the act. The common law procedure act of 1854 was, like the act of 1852, limited to the superior courts of common law, and from the manner in which the act was expressed these words intentionally excluded that court which is called the revenue side of the court of exchequer. It required, therefore, another exercise of legislative authority to make the special provisions of the act of 1854, which had created new rights of appeal in the other courts, applicable to suits as between the crown and the subject in the court on the revenue side of the exchequer. In making the orders now in question the barons of the court of exchequer have assumed that a discretionary power to exercise this legislative authority or not, and thereby to confer or to withhold this important benefit of new rights of appeal, has been given to them by the 26th section of the act of 1859. If the legislature has done this, it has done a thing which is very irregular, and which antecedently would seem to be very improbable. It is not reasonable to suppose that in matters affecting the taxation of the subject the legislature would abdicate its own functions and delegate to the barons of the exchequer the power of determining at their pleasure whether in certain cases there should or should not be a right of appeal as between the subject and the crown. This improbability is much increased when attention is directed to the particular provisions of the statute in question—namely, the Queen’s remembrancer’s act The 10th section embodies and applies (with some slight differences) to the revenue side of the court the provisions as to error and appeal contained in the 46th section of the common law procedure act of 1852, and 23d section of the act of 1854. New rights of appeal are created and regulated by the 12th, 13th, 14th, and 15th sections. By the 16th section special provisions as to the examination and attendance of witnesses, together with the provisions contained in the 46th, 47th, 48th, and 49th sections of the act of 1854, are expressly extended to suits and proceedings on the revenue side of the court of exchequer, and in the 18th and 19th sections are contained express enactments regulating proceedings in error on the revenue side of the court of exchequer, and embodying the 146th and 147th sections of the act of 1852, and by the 20th section the power of appealing to a court of error by means of a bill of exceptions is for the first time created on the revenue side of the court. Suits, therefore, between the crown and the subject on the revenue side of the exchequer are by these express enactments put upon the same footing, with respect to proceedings in error, as suits between subject and subject in the courts of common law, with the exception only of the right of appeal from interlocutory orders given by the 34th and 35th sections of the act of 1854. It is difficult to resist the impression that these last-mentioned rights of appeal were intentionally omitted by the legislature, as not being expedient in revenue cases; but it is much more difficult to accept the proposition of the crown, that these rights were left by the legislature, to be conferred or not at the pleasure of the chief baron and two or more barons of the court of exchequer. These improbabilities and difficulties must, of course, yield to any enactment expressly declaring that such is the intention of the legislature, but they are of sufficient weight to render it necessary that the language of such alleged enactment shall be clear and unequivocal, and not admit of any other reasonable construction. With these observations we come to the construction of the 26th section of the statute. It contains two distinct powers given to the lord chief baron and two or more barons of the court. By the first power they are authorized to make rules and orders as to the process, practice, and mode of pleading on the revenue side of the court. Here the word “practice” is used in its common and ordinary sense as denoting the rules that make or guide the cursus curiœ, and regulate the proceedings in a cause within the walls or limits of the court itself. Under this power any rule might be laid down by the barons for the guidance of their own proceedings that did not require express legislative sanction. By the second power conferred by the 26th section the lord chief baron and two other barons are authorized to extend, apply, and adapt to the revenue side any of the provisions of the common law procedure acts of 1852 and 1854, and any of the rules of pleading and practice on the plea side as may seem to them expedient—that is, for the purpose of making the process, practice, and mode of pleading on the revenue side as nearly as may be uniform with the process, practice, and mode of pleading on the plea side. First, it is admitted on all hands, and, if not, it is clear, that the provisions in the acts of 1852 and 1854, which may be thus extended, applied, and adapted, must be provisions relating to process, practice, and mode of pleading. Uniformity of process, practice, and mode of pleading on both sides of the court is the object of the power and defines its extent. Secondly, it is very difficult to give the words “process, practice, and mode of pleading” in this second power a different meaning or extent of signification from that which they bear in the first power given by the prior part of the section. Taking, then, the word “practice” as equivalent to the cursus curiœ or regulation of proceedings within the court itself; the question is when the 34th, 35th, and 36th sections of the act of 1854 can with any propriety of language be denominated provisions or rules respecting process, practice, and mode of pleading.

This is a question of verbal nicety, depending on nice shades of meaning in a word. The 34th, 35th, and 36th sections of the act of 1854 create, as I have said, new rights of appeal. An appeal is the right of entering a superior court and invoking its and and interposition to redress the error of the court below. It seems absurd to denominate this paramount right part of the practice of the inferior tribunal. The mode of proceeding may be regulated partly by the practice of the inferior and partly by the practice of the superior tribunal, but the appeal itself is wholly independent of these rules of practice. The right to bring an action is very distinct from the regulations that apply to the action when brought, and which constitute the practice of the court in which it is instituted. So the 34th and 35th sections of the act of 1854, which create new rights of appeal, and the 36th section, which defines and binds certain courts to receive and determine such appeals, cannot with any accuracy or propriety be termed provisions which relate to process, practice, or mode of pleading, either in the court appealed from or that to which the appeal is to be made. They are enactments creating new relations between certain courts in cases which are defined, and they are as distinct from rules of practice as international law is distinct from municipal. On reading the rules in question which profess to have been made under the authority of the 20th section, no one using the common language of lawyers would call them provisions relating to the practice of the court of exchequer on the revenue side. For the third rule is that the court of error, the exchequer chamber, and the House of Lords shall be courts of appeal for this purpose—that is, for the purpose of the appeal given by the first and second rules; and the sixth, seventh, eighth, and ninth rules prescribe the duty and define the authority of these courts of appeal. These rules are so many legislative enactments purporting to create a new jurisdiction in the court of exchequer chamber and House of Lords, and prescribing the mode in which such new jurisdiction shall be exercised. It is simply an incorrect use of language to call such enactments provisions respecting the process, practice, or mode of pleading in the court of exchequer; but unless they can be properly and strictly so denominated, there is not, in my opinion, any authority to make such rules conferred by the 26th section of the Queen’s remembrancer’s act. The principal argument of the attorney general was, that the words “process, practice, and mode of pleading” were equivalent to the word “procedure,” and that the word “procedure” denotes the whole course of a cause from its commencement in the court of first instance until its final adjudication in the ultimate court of appeal, and he then contended that a provision giving a new right of appeal may be properly termed a provision relating to the procedure of a cause. I cannot accept either of these two positions. The words “process, practice, and mode of pleading” are not used in the abstract, but always with reference to some court or courts, and so used they have a well-understood and definite meaning. They are used in the 26th section in connexion with the plea side and the revenue side of the court of exchequer, and properly denote the proceedings in a cause on either side within the walls of that tribunal. They have no extra-territorial operation, but if they received the larger construction of the attorney general, it would follow that under the 26th section the barons of the exchequer would have the power to make rules as to procedure in the House of Lords, which would be absurd. It was also urged by the attorney general that the proceeding in error is now made a step in the cause—that is, a step in the procedure—and if procedure be, as he contends, equivalent to process, practice, and mode of pleading, it is a step within the meaning of those words. The fallacy of this ingenious verbal argument lies, as I have already observed, in taking the word “procedure” in the abstract, and substituting it for “process, practice, and mode of pleading,” also taken abstractedly—that is, taken in a sense and manner in which they are never found in the acts in question. The words “step in the cause” are used, as is well known, for the purpose of denoting that in future it should not be necessary to sue out a new writ for the purpose of entering a court of error. But it has been further contended that inasmuch as by the 20th section of the Queen’s remembrancer’s act the proceeding by bill of exceptions is extended to the revenue side, by which any error or omission in the ruling of a judge at the trial may be brought before a court of error, the giving of an appeal from the judgment of the court in banco on the same question of error in the ruling is no more than a regulation of form, and not the introduction of a new right of appeal. But the observation is not correct in point of fact, for the bill of exceptions is to the ruling of the judge at the trial, whereas the appeal created by the 35th section of the act of 1854 is from a different judgment, viz: the decisions of the court in banco. But the answer to the whole of this argument is, that although the bill of exceptions was a well-known proceeding in the courts except on the revenue side of the exchequer anterior to the year 1854, yet the legislature deemed it necessary to create the new rights of appeal which are given by the 34th and 35th sections of the act of 1854 by express enactments for the purpose. This argument, therefore, by bringing into immediate contrast the express mention of the proceeding by bill of exceptions with the total silence of the legislature as to the appeals given by the 34th and 35th sections of the act of 1854, serves to confirm the conclusion that the legislature deliberately abstained from extending to suits on the revenue side the provisions contained in those sections. It was strongly contended by the respondents that even if the barons of the exchequer had power to make the rules in question, they had no power to make thena apply to pending proceedings, and that the attempt to do so was unjust. This argument is not, in my opinion, well founded. Many of the enactments contained in the Queen’s remembrancer’s act are so worded as to be applicable at once to pending proceedings. If, therefore, these rules are warranted by that statute, there can be no injustice in making them apply to pending proceedings so long as they apply equally and impartially to both sides. Still it is a subject of deep regret that any rules should have been made expressly with a view to the determination of a particular cause. Four years have elapsed since the passing of the Queen’s remembrancer’s act, and the necessity of these rules had never occurred to the barons of the court of exchequer. On the eve of the argument of the motion for a new trial in this important case the rules in question were made without the time necessary for due deliberation. The result is that the efforts made to settle a question of the gravest importance and most essential for the guidance of the government of the country, and regarded with great expectation, have been rendered abortive, or rather, to speak more correctly, the mons parturiens of this great cause, raised with so much labor and expense, will produce nothing but the ridiculous issue of some discordant opinions of the meaning of the word “practice.” I, therefore, have to move your lordships that the appeal of the crown be dismissed with costs.

Lord Cranworth. On the argument of this case at your lordships’ bar two questions were raised: First. Had the court of exchequer the power to make the rules in question? Secondly. If they had, could they make them so as to operate on a defendant who had already obtained a verdict? The first question depends entirely on the 26th section of the 22d and 23d Victoria, cap. 21. That section contains two members. I do not consider it necessary to discuss what rights the court had under the first. By the second part of the clause the chief baron and two or more barons are authorized from time to time by any rule or order to extend any of the provisions of the acts of 1852 and 1854 to the revenue side of the court, as might seem to them expedient, for making the practice on the revenue side of the court as nearly as might be uniform with the practice on the plea side. By the second of the rules of the 4th of November, 1854, it was provided (among other things) that in all cases of motions for a new trial upon the ground of misdirection by the judge at the trial, if a rule to show cause be granted, but afterwards discharged, then the party decided against may appeal if there is a difference of opinion among the judges, or if the court gives leave to appeal. There is a provision in the act of 1854, section 35, giving to the suitor this power of appeal in such motions on the plea side of the court. Therefore, looking only to the words of the statute, the rule was authorized, if it would tend to make the practice on the revenue side of the court more nearly uniform with that on the plea side. Did, then, the alteration thus introduced by the second rule tend to make more uniform the practice on the two sides of the court? I cannot doubt that it did. If by the word “practice,” as used in the statute, we are to understand the whole course of procedure from the commencement of a suit to its close by final judgment and execution, there can be no doubt that under the rule in question the practice on the revenue side was made more uniform with that on the plea side. In fact, the practice so understood was made the same on both sides of me court. I strongly incline to think that, in construing a remedial act like that now under consideration, we may fairly adopt this liberal interpretation of the word practice. When the legislature sanctions the doing of certain acts for the purpose of making the practice on the revenue side of the court more uniform with that on the plea side, it is not unreasonable to understand it as meaning the practice in revenue causes—i. e., the practice in every stage of their progress, from the commencement to the end. But, in my view of the case, it is not necessary that I should rely on this more extended sense of the word practice, for, even supposing the practice referred to in the statute to be confined to that in the court of exchequer itself, and to have no reference to the mode in which the cause is to be dealt with after it has left that court, still I think the rule in question tended to make more uniform the practice on the two sides of the court. I must here remark that the power conferred by the 26th section is not a power, as was assumed at times in the argument, to introduce clauses relating to process, practice, or pleading, but a power to introduce any sections which may tend to make the process, practice, and pleading on the two sides of the court uniform. On the plea side a suitor has two modes of bringing any misdirection of the judge at the trial under the review of the courts of error. He may tender a bill of exceptions at the trial, before the jury have delivered their verdict, and then, by proceeding in error, bring the question as to the ruling of the judge before the successive courts of error; or, after verdict, he may move the court of exchequer for a new trial, and if dissatisfied with the judgment there given he may appeal. Whichever course is taken, the question whether the judge has ruled according to law may be subjected to the review of the exchequer chamber, and afterwards of the House of Lords. On the revenue side of the court only one of these courses was, before the promulgation of the rules, open either to the crown or to the defendant. Either party might tender a bill of exceptions, and so bring the matter before the courts of error. But if, instead of taking that course, he preferred to move the court of exchequer after verdict for a new trial, there was then no mode of questioning, in the courts of error, the ruling of the judge at the trial. The effect of the new rules of court is to enable the party, whether the crown or a subject, dissatisfied with the judgment of the court of exchequer on such a motion, to appeal to the courts of error, thus making the mode of bringing before the courts of error the question whether the ruling of the judge at the trial was correct, on the two sides of the court, uniform. This may surely be treated as an alteration of practice in the court itself. There are two passages to the courts of error, by either of which a suitor on the plea side may bring under the review of those courts an alleged misdirection of the judge at the trial—the one notoriously inconvenient and hazardous, the other easy and safe. Before the promulgation of the rules a suitor on the revenue side could only proceed by the former course. Under the rule in question the latter course is opened to him as the suitor on the plea side. I think this must be deemed to make the practice more uniform on the two sides of the court itself. If I am wrong in coming to this conclusion, then I should not think that the rule in question was warranted, for, as I construe the statute, there was no power given to the judges of the court to extend any of the provisions of the two former acts to the revenue side of the court, unless by so doing they would make the process, practice, or mode of pleading on the two sides of the court more nearly uniform. The construction of the 26th section of the statute seems to me to require that the words at the end of it, which indicate the purpose for which the rules might be made, should be read as applying as well to the power of extending the provisions of the former acts to the revenue side of the court as to the power of so extending the rules of pleading and practice on the plea side of the court. In the further observations, therefore, which I am about to make, I must assume that the rules in question did tend to make the practice on the two sides of the court more nearly uniform. But even supposing that to be so, still it was said there are considerations which ought to satisfy your lordships that no power of making such rules was intended to be conferred on the judges.

First, because it is absurd to suppose that it could have been intended to delegate to the judges of a court the power of saying that any decision of theirs should be capable of being brought for review before the exchequer chamber, and ultimately to this house; and secondly, because there are clauses in the act itself inconsistent with the hypothesis that any such power was, in fact, conferred. On the first ground I am far from disputing that cases may be suggested in which a strict adherence to the language of a statute, whereby powers are conferred on a court or other body, would lead to consequences so absurd or inconvenient as to make it necessary to understand the legislature as having used the words in question not in their ordinary sense. But I cannot discover any such necessity here. Suppose the clause authorizing the application of any of the provisions of the former acts to the revenue side of the court had in terms included those provisions which related to appeals, what would there have been absurd or inconvenient in such an enactment? It might have been unusual, but that would have been all; and I know of no principle which justifies us in departing from the ordinary interpretation of words merely because they confer unusual powers. I incline to think that I should have taken this view of the case even if there had been no power of bringing under review the ruling of the judge, but here the very question as to which a right of appeal to the courts of error is given by the rule now under consideration might have been brought by bill of exceptions under review of the same courts. Consider the question—first, when the decision of the court of exchequer is conformable to the ruling of the judge, and where, therefore, the application for a new trial is refused. In every such case the right of appeal is merely a right, in the party complaining of misdirection, to bring by a new and less difficult mode before the courts of error the same question which he might have brought before them by a more cumbrous and complicated mode of proceeding—i. e., a right to proceed by appeal on a case stated so as to raise the matter in dispute, instead of by bill of exceptions. The rule in such a case is merely the extending to the revenue side of the court of a clause or clauses of the act of 1854 likely to make the practice on the two sides of the court more uniform. It gives to the suitors in causes on the revenue side of the court the same facilities of getting out of the court below and reaching the courts of error which are possessed by the suitors on the plea side. It does not give substantially any new right of appeal, for, looking to substance, not to form, the party appealing is only doing what he might have done by bill of exceptions. The case, though equally clear, is not so simple where the court of exchequer decides against the ruling of the judge, and so awards a new trial. The party dissatisfied with that decision would, independently of the rules, be compelled to go down to a new trial. The judge presiding at that trial would, as a matter of course, state the law to be as it had been settled by the court. The party dissatisfied with that decision might then object to the law so laid down, and call on the judge to state the law to be as it had been expounded by the judge at the former trial, and on this being refused, as it must be refused, he might tender a bill of exceptions, and so bring the question before the courts of error. The effect of the rule in question is to enable him to bring before the court of error by appeal the same question which he might have brought before them by bill of exceptions, after incurring the useless and expensive delay of a new trial. Whether, therefore, the court of exchequer may have decided against the motion for a new trial or in favor of it, the effect of the rule is to enable the suitor on the revenue side of the court, who considers himself aggrieved by the ruling of the judge at the trial, to reach the court of error by the same easy course which is open to the suitor on the plea side. I am aware that the courts of error on an appeal have larger powers than they can exercise on a bill of exceptions. On a bill of exceptions they have only to say whether there has or has not been misdirection. If there has, the duty of the court of error is simply to award a venire de novo; if there has not, to refuse it. But on an appeal to the court of error the court is bound to give such judgment as the court below ought to have given. Now, on a motion for a new trial on the ground of misdirection, it is by no means necessarily the duty of the court to grant a new trial even where there has been misdirection. The court may see clearly that the jury could not have been, and were not, misled, and then a new trial may be justly refused; or the court may see that it ought only to be granted on terms—as, for instance, if a material witness has died since the trial, the court may refuse a new trial unless the complaining party consents to allow the evidence of the deceased witness on the former to be read on the new trial; and many other instances might be adduced. All these circumstances are to be considered by the court of error on an appeal, which would be out of place on a bill of exceptions. But it surely cannot be an argument against the power to make the rule now complained of, that it enables more substantial justice to be done when the case is before the court of error than could have been done independently of the rule. On these grounds I have come to the conclusion that even if the power to grant a right to appeal, where no means previously existed of bringing the matter complained of before the courts of error, would be so unusual and strange that language apparently conferring it must be construed otherwise than according to its ordinary meaning, still here there not only is no such anomaly, but the power conferred is, in fact, only a power enabling the court to authorize its suitors to obtain the judgment of the courts of error more simply, more expeditiously, more cheaply, and more effectually than they could have done under a more complicated course of proceeding.

It was, however, argued for the respondents that there is evidence, deducible from other clauses of the statute, showing that it was not intended to confer on the judges of the court of exchequer the power to make such rules as those now under consideration. This argument rested mainly on the fact that a right of tendering a bill of exceptions is given, but without any power of appeal; and, secondly, that a right of appeal is given by different sections of the act from the decision of the court of exchequer in some other cases; and the inference, it was said, is that where a right of appeal was intended it was given expressly, and so that it would be unreasonable to suppose that the legislature meant to delegate to the court the right of declaring whether there should or should not be a right of appeal in cases where no such right is conferred by the act. In order to estimate the force of this argument we must assume that, but for the other clauses of the act relied on, there was authority given by the 26th section to make the rules in question. If that is so, then the question is whether the other sections relied on make it plain that the power conferred by the 26th section did not extend to cases to which but for those sections, it would have been applicable; in other words, that the 26th section must be read as if there were in it a proviso declaring that nothing therein contained should be deemed to enable the chief baron and two barons to make any rule empowering any suitor on the revenue side to bring before the courts of error any question as to (inter alia) the ruling of a judge at nisi prius otherwise than by a bill of exceptions. Unless the effect of the clauses relied on ean be carried to that extent they do not sustain the argument of the respondents. I cannot attribute to them any such effect. The clause giving the right to tender a bill of exceptions was clearly necessary, for there could have been no right under the 26th section to extend to the revenue side of the court the provisions of the statute of Westminster. So as to the right of appeal given in cases of summary proceedings under the legacy duty and succession acts; they were wholly out of the purview of the common law procedure acts. The only clause really raising any question on this part of the argument is the 10th, which is taken partly from the act of 1852, and partly from that of 1854. Mr. Justice Willes considers that the general powers conferred by the 26th section of the act of the 22d and 23d of Victoria, cap. 21, would not extend to the case contemplated by the 10th section of the same act, or, at all events, that it is doubtful whether they would, and he gives his reasons for that opinion. I am far from saying that he is wrong in the view which he has thus taken. But even if he is, all that can be said is that there is one case which has been specially provided for by the legislature, for which, if it had not been provided for, the judges might, under their general powers, have made adequate provision. I do not feel called on to find reasons why this distinction was made. Perhaps it was thought so important to enable parties to obtain the judgment of the court without the expense of a suit as to make it expedient to introduce this 10th section, formed by uniting together the 46th section of the act of 1852 and the 32d section of that of 1854. Be that as it may, I cannot attribute to the circumstance that express provision is made for giving an appeal in one particular case so much weight as to collect from it that the words of the 26th section, which purport to give a general power, embracing that case, could not have been meant to have the operation which they would have had if the special enactment had not existed. On these grounds I have come to the conclusion that the rule giving a right of appeal from a decision of the court, whether granting or refusing a new trial on the ground of misdirection, was warranted by the 26th section, as being a rule tending to make the practice on the two sides of the court uniform; that there is no absurdity or inconvenience in construing the words of the act according to their literal import; that, so construed, they conferred on the judges of the court of exchequer the power to make the rule authorizing an appeal when the court refused or granted a new trial applied for on the ground of misdirection; and that there is nothing in the other clauses of the act showing that no such power was intended to be given. If your lordships decide in conformity with the lord chancellor on the question of the construction of the 26th section, the second point made at the bar as to the retrospective effect of the rules does not arise. But should it become necessary to decide it, I think the answer given at the bar is satisfactory. The authorities show that, when new arrangements come into force for regulating procedure, they operate on pending as well as future suits. Where this principle has been acted on, as it has often been acted on, with reference to costs, I cannot quite reconcile my mind to what has been done. Here, however, the nova constitutio was merely a regulation calculated, or supposed to be calculated, to make more sure the ultimate attainment of justice. It operated equally on both parties, and, according to all the authorities, affected existing as well as future suits. In this branch of the question the right to make the rules prospectively must be assumed. And it is considered that when a suitor comes before the court he does so merely to obtain his right, whatever that right may be. He is not allowed to complain of any rules or orders lawfully made by the court for the better attainment of justice, merely because they have been made after he has placed himself within its jurisdiction. On these grounds I think that the court of exchequer chamber ought to have entertained jurisdiction.

Lord St. Leonards, who was indistinctly heard, said he had formed a decided opinion on the case. Looking to the construction of the Queen’s remembrancer’s act, standing alone, it was clear that the intention and object of that act were to simplify the proceedings on the revenue side of the court of exchequer. After carefully examining the different sections he arrived at the conclusion that when the act meant to give an appeal it clearly and expressly said so. The power of appeal given to the revenue side of the court was to be by way of bill of exceptions. In 1860 the barons of the exchequer made rules of considerable extent for the better regulation of the process, practice, and mode of pleading of the court, and they made further rules with that object in 1861, but no attempt was made to frame rules governing the appeal which was now under consideration. He thought that the 20th section of the act was properly construed and acted upon by the barons until the present case arose, when the crown, having lost the ordinary means of appeal by bill of exceptions, moved for a new trial. There being in that form of procedure no appeal from the decision of the court of exchequer, the barons framed on the instant new rules to enable an appeal to be brought, and accomplished that purpose, if the order they made could be held to be authorized by the provisions of the 26th section. He was distinctly of opinion that no right of appeal could be given except by express words, and the right of appeal could not be said to be so given by such words in the 26th section as “process, practice, and mode of pleading,” for on those words the right could only be founded by implication. The rules hastily made by the court of exchequer would operate with all the force of an act of Parliament, and the legislature certainly never intended that such rules should be made pendente lite. No one could doubt that the barons of the exchequer acted with the purest intentions, but such an ex post facto power as they had exercised was never intended to be conferred upon them by the legislature. It had been laid down by Parliament that litigants on the revenue side of the court of exchequer should proceed to correct errors by bills of exceptions, while the barons of that court laid down that the remedy should be by an appeal of a totally different kind. For these reasons he was clearly of opinion that the present appeal should not be allowed.

Lord Wensleydale. The question which your lordships have now to decide is very important. I regret to find that the conclusion to which some of my noble and learned friends have arrived differs from mine, and, from the sincere respect I have for their opinion, I cannot feel much confidence in my own. But after having given every consideration in my power to the question, I feel bound to advise your lordships to adopt the course which I think is just, and to reverse the decision of the court of exchequer chamber. The question, though important, really lies in the narrowest compass, and is only as to the meaning of the 26th section of the statute 21 and 22 Vict., cap. 21, “An act to regulate the office of Queen’s remembrancer,” and which makes it lawful for the lord chief baron and two or more barons of the court of exchequer, from time to time, to make rules and orders, and also from time to time, by any such rule or order, to extend, apply, or adapt any of the provisions of the common law procedure act, 1852, and the common law procedure act, 1854, and any of the rules and pleadings and practice on the plea side of the said court, to the revenue side of the said court, as may seem to them expedient, for making the process, practice, and mode of pleading on the revenue side of the said court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of the said court. To this section we must, I am clearly of opinion, apply the ordinary rule of construction applicable to all written instruments—what is the true meaning of the words used, according to their usual acceptation and their ordinary grammatical meaning—and, applying that rule, I do not think there is much doubt what the meaning is. Does it authorize the court of exchequer to grant an appeal to the court of exchequer chamber and the House of Lords against the decision of the court of exchequer, on the revenue side, on a rule for a new trial on the ground of misdirection? But, on perusing the very able opinions of some of the judges of the Court of Queen’s Bench, delivered in the exchequer chamber, I perceive in them a suggestion of a rule of law that such power of appeal was so unusual, that it required “a clear, unambiguous expression” of the intention of the legislature in order to support it; that the power must be “distinctly and unequivocally given,” and that supposed rule seems to me to have had great influence in forming the opinions of these judges of the Queen’s Bench. Such a rule of construction appeared to me to be entirely new, as far as my experience went, and I inquired from the learned counsel in the course of the argument whether any authority could be found for such a principle of construction. I was referred by Mr. Mellish to some cases on the subject of appeals from the decisions of magistrates, collected in Dickinson, Sess. Cases, 6th edition, 626. These, when closely examined, appear to amount to no more than this—that an appeal cannot be given “by implication;” that is, in truth, no more than that, however much you may be satisfied that the legislature must have intended to have given it, it is not enough unless there are words to give it. I have often had occasion to mention, in the construction of written instruments, how important it was, in every question of intention, to distinguish between the meaning of the words used and what the framer may be supposed to have intended, and I have found that the rule has not always been attended to. In my opinion there is no legal ground for such a principle of construction as seems to have been acted upon by some of the judges.

The true question for us to decide is, what is the ordinary and grammatical meaning of the words used in this section? Do these words give the chief baron and two barons the power of extending the right of appealing against the decision of a rule to show cause for a new trial on the ground of misdirection to the court of exchequer chamber, such a power being clearly given to the common law courts by the act of 1854? The first part of the 26th section gives the judges power to make new rules and orders on the revenue side of the court. It is not contended that this would authorize a new rule to allow an appeal. The words of the second part, if taken by themselves, would be clearly enough to allow all the provisions of the acts of 1852 and 1854. Three questions then arise: 1st. Is this so unreasonable that the general power is not to be so construed? For, no doubt, if the natural and ordinary construction of the words used lead to an absurd or unreasonable consequence, they may be moderated, or qualified, or explained. 2d. Does the circumstance that other provisions of the statute, expressly enacting that certain clauses of the common law procedure act, 1853, and the common law procedure act, 1854, should be in force, and extend to the revenue side of the exchequer, afford a proof that none others were intended to be extended, applied, or adapted? And 3d. Does the conclusion of the 26th section, explaining that the object of the enactment is that the process, practice, and mode of pleading of the revenue side of the court of exchequer should be made uniform with the process, practice, and mode of pleading on the plea side of the court, make any difference? Is the word “practice” to be understood in the larger sense of the whole conduct of the procedure in the suit in the court of exchequer, from the beginning of the suit to the ultimate judgment and execution, or in the more limited sense of common and ordinary practice? These several points must be disposed of: 1. It seems to me that it is impossible to say that the introduction of a power of appeal against a decision upon a rule nisi for a new trial, for misdirection in point of law, is an unreasonable power; on the contrary, it is a most satisfactory one. It gets rid of the difficulties and inconveniences of a bill of exceptions, which all practitioners know to be extremely troublesome and embarrassing in its preparation and settlement, and substitutes a much more simple course for inquiry into the propriety of the judge’s ruling. I think it is wholly impossible to contend with success that the substitution of this mode of proceeding is not a very reasonable one, nor is there anything in the least unreasonable in delegating this power to the judges of the court itself. Mr. Justice Willes, in his very able judgment, has given many instances of such delegations by the legislature to others. The act of the 3d and 4th of William IV, cap. 42, the first of a series of acts by which the law has been greatly reformed and improved, gives the whole authority to make most important changes, subject only to the condition of being laid before Parliament, to the judges. The common law procedure act, 1852, gives a somewhat similar power to the judges. So the common law procedure act, 1854. These powers were given to a quorum of eight judges, the chiefs of the court being three. In this case it is the chief of the exchequer and two judges who have the power delegated to them; but the delegation being perfectly reasonable, there surely is not the shadow of an objection that a quorum of the judges of the court, who alone administer the law of the exchequer, should have the power to make the allowed alterations in it. I think, therefore, that the power of adopting the provisions as to appeal is quite valid. 2. Does the enactment in express terms in the statute 22d and 23d of Victoria, cap. 21, of certain provisions as applicable to the revenue side of the court of exchequer, afford an inference that they were all that the legislature meant to be so applied, and operate as a sort of legislative declaration that no more should be so applied? I think this circumstance affords no such inference. Clearly, not those which are independent of the power to appeal, or bring a writ of error. All that can be implied is that those powers were all that the legislature then thought expedient; but they give to the judges the power of adding, from time to time, others which they might judge proper. Had the legislature thought it right to allow no other, nothing would have been more easy than to have said so; we cannot imply it. These sections are the 9th, 10th, 12th, 15th, and 20th. The 9th refers to the power of amendment only, and is given to its full extent. It is of the most frequent application, and nothing is more reasonable than that the legislature should, at all events, have enacted that this useful provision should be made. Mr. Justice Willes has assigned most satisfactory reasons why the new sections giving error or appeal were necessarily inserted. It is from those only that any inference can be drawn that the power of error and appeal were to go no further. The 12th section, giving appeal from the assessment of the commissioners of the inland revenue, was absolutely necessary, because the common law procedure acts, 1852 and 1854, could not have given it. So the 15th section, giving error or a writ of summons on the succession duty act, or for legacy duties. So the 20th, for a bill of exceptions in a common case, was not given by the statute 1852, but only in the newly constituted multifarious case of ejectment. It was given by the statute Westminster 2d. As to the section 10 there is great doubt also, to say the least, whether it was not necessary, for it does not give precisely the same powers to state a case as the 42d and 46th sections of the statute 1852; the first of which gave only a qualified power to the judge on being satisfied that the parties have a bona fide interest in the question, which is not required in the section 10. It would not have been sufficient, therefore, to leave those 42d and 46th sections unaltered, and section 10 effected that object. As the attorney general in all revenue cases is a necessary party, he is included in the term “parties,” as pointed out by Mr. Justice Willes’s judgment, and his consent to a case would supersede the judgment of a judge as to the bona fide interests in the question. This, in my mind, is quite satisfactory; but even if it leaves it a matter of doubt whether this power could have been given by the acts 1852 and 1854, it was expedient to make it perfectly clear, and leave no question as to the right of the attorney general, on behalf of the crown, to the claim to have such a case stated, with the consent of the other party to the cause, and the simple order of a judge. On the whole, it seems to me clear that the principle of expressio unius est exclusio alterius cannot be held to apply. I have come, therefore, after much consideration, to the conclusion that the second part of the 26th section authorizes the exchequer judges to make a regulation giving an appeal in the case of a discharge of a rule nisi for a new trial.

The third question is, whether this power is qualified so as to confine it entirely to matters of the ordinary practice of the court in a limited sense. The words of the second part go much beyond that. They authorize the chief baron and barons from time to time, by any rule or order, to extend, apply, or adapt any of the provisions of the common law procedure act, 1852, and the common law procedure act, 1854. This is quite independent of the clause authorizing the application of the rules of pleading and practice; but the general object is to make the process, practice, and mode of pleading on the revenue side of the courts as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of the court. Does that provision limit and control the power to adopt the provision of the acts 1852, 1854, and apply to common and ordinary practice in the limited sense only? Many of those provisions in the two acts go greatly beyond “practice” in that sense, and process and pleading also. Can it be supposed the legislature meant to undo, by the use of that term in the concluding part, what they had given before? I cannot but think that to make the whole clause consistent the word “practice” must be construed in the larger sense given to it in the judgment of the judges of the court of common pleas, and explained more particularly by Mr. Justice Willes. It seems to be used in the same sense as it is in the preamble of the statute, 1852, which is of much more importance than the title. It is for rendering the process, practice, and mode of pleading more simple and speedy. And in the preamble of this act, 22d and 23d Victoria, cap. 21, it is, inter alia, to make provision in relation to the procedure on the revenue side of the court. Nor can I see any ground to confine the enactments to one department of the revenue side of the court, as contended by Mr. Mellish. The words apply equally to all pleadings and proceedings in revenue. The abolition of the writ of error on the revenue side by section 19, (giving the barons a discretion as to bail, which would not, therefore, necessarily affect the attorney general,) and by the act of 1852, section 148, which enacts that a writ of error shall not be necessary or used in the proceeding to error, but shall be a step in the cause, seems to me to put the court from which the record was before removed by the writ of the Queen entirely on a different footing. The suit is now begun and ended in the same court. The cause is not removed. The execution issues from that court, the court of error giving its assistance to come to a right final conclusion. I agree with the judges who think that the whole proceeding, from the beginning to the end of the suits, the taking of the opinion of the court of error, as well as acting upon it, constitutes the practice of the court since the recent alteration, and a different mode of taking that opinion is a part of that practice. But a question has been presented to our attention at the close of Sir Hugh Cairns’s argument, and since fully discussed, which must now be considered. Was it competent for the judges of the exchequer to alter the law as to then pending proceedings, and to enact provisions at the time which they did—viz., on the 4th of November, 1863, so as to affect the verdict which the claimant then had, which was subject only to the then existing law, and make it subject to another mode of inquiry? I was much impressed with this objection at first, and was for a time strongly inclined to think that it was well founded, and that the new rules, though operative as to all future suits, were not operative in this. The further argument and a full consideration of this question have satisfied me that this objection is not well founded. Two questions present themselves: 1. What would have been the effect if the legislature had made a new act of Parliament containing precisely the same terms as the rules of the 4th of November? Would it have affected existing suits? 2. If it would, ought the rules to be construed in a different way, and not allowed to have that effect? I answer, that the new law would affect the existing suit; and the delegated authority to the barons of the exchequer ought to have precisely the same effect. First, in this case it is perfectly clear that what I for the present may call the law of the 4th of November, 1863, took away no right. The verdict had been given for the claimant. The powers of tendering a bill of exception was gone. The new law took away no right from the claimant. It gave both the claimant and the crown precisely the same right, that of questioning the propriety of the decision of the court of exchequer on a rule for a new trial for misdirection. If the judgment was given for the claimant, the crown has the right to question that by appeal. If for the crown, he has exactly the same right. The new law is, therefore, perfectly fair to both parties. But, independently of that consideration, I think that if it were an alteration in mode of proceeding only, to the prejudice of the claimants, the objection would not prevail. There is no doubt of the justice of the rule laid down by Lord Coke in the 2d Institute, 202, that enactments in a statute are generally to be construed to be prospective, and regulate the future conduct of parties; but this rule of construction would yield to the intention of the legislature. It could not be supposed that the legislature meant to deprive a man of a vested right of action. This was laid down in Moon vs. Dundas, in 2, Ex. 22. But, on the other hand, it is clear that there is a material difference when an act of Parliament is dealing with a right of action already vested, when it is presumed that it is not intended to take it away, and mere procedure to recover those rights, which it may be quite reasonable to regulate or alter. This has been most clearly and satisfactorily explained in the case of Wright vs. Heale, 30 L. T., Ex. 40, particularly by Sir James Wilde. In that case it was held that the common law procedure act, 1860, section 34, which enacts that if a plaintiff in action for a wrong in the superior courts recover less than £5 he shall not be entitled to costs, unless the judge certifies that the action was brought to try a right, applies to actions tried after but commenced before the suit. Sir James Wilde says, with truth, that this does not take away any right. The right of the suitor is to bring the action, and to have it conducted in the way and according to the practice of the court in which he brings it; and if any act of Parliament, or any rule founded on the authority of the act of Parliament, alters the mode of procedure, then he has a right to have it conducted in that altered mode. That, therefore, takes away nothing. The right of action does not make the right to keep all the consequences of the right as they were before. It gives the right to have the action conducted according to the rules then in force with respect to procedure. (6 A. and E., 693; 6 Bing., 238; 8 Law J., 51.) I am, therefore, clearly of opinion that if the provisions of the rule had been in the act of Parliament of the same date, the act would affect existing suits, and would unquestionably have given an appeal in suits in which verdicts were already obtained. Secondly, are these rules made not directly by Parliament, but by delegated authority to be differently construed? I think not. Parliament has delegated the power, without restriction, to the judges. It has made no condition that it should operate only as to future suits; and, if it was not to affect pending suits, many useful alterations might have been prevented. The period of making the allowed rules is left entirely to the judges themselves to decide. It must be considered as unquestionable that they had a power to make rules for existing suits; and if they make great changes, even if they were to be thought to be unreasonable, they would not, therefore, be void, because the discretion of the judges is absolute and their rules final. But, in truth, they operated with perfect fairness on both the litigant parties. I forgot to say that the criticism on the language of the rules made in the course of the argument may be well founded. They are not accurately prepared, but their meaning is clear. There is a mistake in the provisions as to the court of error, which is copied from the words of the act. It referred to another court of error, but the meaning is perfectly clear, and the inaccuracy cannot possibly lead to a mistake. I am, therefore, of opinion that the judgment of the exchequer chamber ought to be reversed.

Lord Chelmsford. I cannot help feeling some regret that the learned barons of the exchequer did not hesitate a little before they determined to relieve the crown from the difficulty in which it was placed with respect to a bill of exceptions by issuing the rule in question, because, from the haste in which it was necessarily prepared, in order to render it available for its intended object, scarcely any time could have been afforded them to consider the grave doubts which have subsequently arisen, and which upon reflection might have occurred to themselves, as to their power to meet the emergency in the mode which they adopted. They might also upon consideration have felt that, however justifiable the occasion might seem, it was not desirable under any circumstances to make a rule which, though in terms calculated for general application, was purposely designed to answer the exigency of a particular case. To this rule so introduced an objection has been taken at your lordship’s bar on account of its supposed retrospective operation. This objection does not appear to have been raised in the court of error, though incidentally mentioned in the course of the argument there. Whatever conclusion may be adopted as to the propriety of making the rule at the time and upon the occasion when it was issued, or as to its operation and effect, I am so strongly of opinion it was ultra vires of the framers of it that I think it unnecessary to make any observations upon its alleged invalidity on any other ground. The short question is whether the legislature, by the 26th section of the Queen’s remembrancer’s act (22 and 23 Victoria, c. 21) has given to a majority of the barons of the court of exchequer the power to determine whether it is expedient that there should be a right of appeal in a case in which none existed before. There is, to my mind, a sort of prima facie presumption against this having been intended, arising from the consideration that if the legislature meant to delegate their power in this respect a very few plain and simple words would have been sufficient to express their intention; but so far from clearly conveying their meaning, it is so concealed under the language they have employed that the ingenuity of the ablest counsel has been tasked to discover it; and after arguments of great length, both in this house and in the exchequer chamber, it is still left in the doubt and uncertainty which must necessarily result from the difference of opinion which it has produced. Clear and distinct language might have been expected upon an occasion when the legislature, having ample means of forming a competent judgment of the expediency of allowing an appeal in a particular case, were about to remit to the judges of a court the discretion of determining whether such an appeal from their own decisions ought or ought not to be granted. I quite agree with my noble and learned friend (Lord Wensleydale) that it is not necessary that the power should have been “distinctly and unequivocally given,” but neither ought it to have been left to a doubtful and conjectural inference from equivocal words. The whole argument is involved in the construction of the latter part of the 26th section of the Queen’s remembrancer’s act, “and also from time to time,” &c. The words to be principally dwelt upon are “process, practice, and mode of pleading.” Now, of these words, “process” and “pleading” are by common consent dismissed as wholly inappropriate to describe any proceeding which is to be carried on beyond the walls of the court, and the whole stress of the argument is laid upon the word “practice.” But as this word “practice” (more especially looking to the company in which it is found) would in its ordinary meaning be confined, like the other two words, to the court itself, it has been necessary to pray, in and of the more entensive meaning contended for, the words of the common law procedure act, 1852, section 148, repeated in the Queen’s remembrancer’s act, section 19, that “the proceeding to error shall be a step in the cause.” The argument then proceeds thus: Writs of error being abolished and appeals substituted, in every case in which error can be brought, the proceedings to the court of appeal are proceedings in the court below, and become part of the practice of that court. Therefore a statute empowering the judges of one court from which no appeal lies to assimilate its practice to another, from which a right of appeal exists, necessarily and expressly confers the power to create such an appeal, or the practice of the two courts would not be uniform. But this argument appears to be without foundation, from the language of the legislature on which it is rested. It is to be observed that the words used are not, “the proceeding in error shall be a step in the cause,” but “the proceeding to error.” It would certainly be an extraordinary provision to enact that the proceedings in one court shall be part of the practice of another, but not at all to say that every step up to the very door of the court of error shall be a proceeding in the court from which the error proceeds. The word “practice,” “however, is said to be a word of wide extent. Mr. Justice Willes says it applies to “all the proceedings by which a cause is brought to judgment and execution.” And Chief Justice Erle says, “throughout the common law procedure act and the Queen’s remembrancer’s act ‘procedure’ is used as equivalent to process, practice, and mode of pleading.” But the word “procedure” is nowhere used in any of the enactments of the common law procedure act or of the Queen’s remembrancer’s act. It is merely part of the name by which the first mentioned act may be cited, and a portion of the title of the latter act. The learned chief justice’s meaning must, therefore, be that the word “procedure” is used by the legislature as the description of an act which comprehends provisions as to process, practice, and pleading; a remark which, with great deference, appears to me to have no force at all in the argument. Mr. Justice Willes also is not quite accurate in saying that the word “practice” is a word applying “to all the proceedings by which a cause is brought to judgment and execution.” In its ordinary meaning it is undoubtedly distinguished from the “pleadings;” no unimportant part of the proceedings by which a cause is brought to judgment. The learned judge also, placing no reliance upon the word “process,” and of course not on the word “pleading,” says, “but coming to ‘practice,’ ‘practice’ is no term of art.” Here, again, I must beg leave to differ with him. “Practice,” even standing by itself, applies to a part of the proceedings of a court which are sufficiently distinguishable from the rest to be the subject of books of practice. As to his observation that one of the heads of such a work will be the head of “error,” that is likely to be the case, because courts of error have their practice as well as courts of original jurisdiction. A book of practice, therefore, without such a heading might be regarded as imperfect or incomplete, but it could hardly be called “maimed” in the view of the learned judge, because nothing would be cut off from the history of the practice of the other courts, of which alone upon the supposition it would profess to treat. It may be that the word “practice,” under certain circumstances, may be as comprehensive in its expression as the argument requires; but it hardly seems a correct mode of ascertaining its meaning in the place where it is found, to separate it from all the other words with which it is associated, and, having thus detached it from its qualifying context, to construe it by itself. Even if the term “practice” might in a popular sense be taken to comprehend all the proceedings in a suit from the beginning to the end, yet when the legislature uses it with the words “process and pleading” it must have a limited meaning assigned to it, and as the practice of a court is as much distinguished from its process and pleading as these portions of the proceedings are from each other, the word “practice” in such a connexion cannot be supposed to have been intended (in the words of Chief Justice Erle) “to include the whole of the suit from the issuing of the first to the execution of the last process.”

But attributing the most comprehensive meaning to the word “practice,” it is still the practice of the court of exchequer to which the statute refers; it is a proceeding in that court which is to bring the parties to the door of the court of error. The practice pointed at does not advance a single step over the threshold of the court of appeal. It is applicable to all cases in which a right of appeal previously existed, but has no force whatever to create a new right. To give it that effect would be to confound the distinction (in the words of Mr. Justice Orompton) between “the machinery of the appeal and the right of appeal.” The view which I have taken of the limited extent of the word “practice,” in the 26th section of the Queen’s remembrancer’s act, appears to me to receive strong confirmation from other parts of the act. In several other sections appeals from the revenue side of the court of exchequer are specially provided for, and it may fairly be asked why, if the legislature intended that there should be an appeal in cases of motions for a new trial, a provision to this effect was not expressly made? It is generally considered to be a sufficient indication of intention, when certain things are specifically enumerated, that others not mentioned are not proposed to be included. Plausible reasons have been suggested why it was necessary that the act should contain provisions for appeals on special cases, bills of exception, and cases of succession and of legacy duty; yet no satisfactory explanation has been given why the legislature should have taken all these under its own direction, and, as if proclaiming its incompetency to decide upon a question of expediency, should have left the only remaining case to be provided for by the delegated discretion of a majority of the court of exchequer. But even limiting the view to the section in question, the whole frame of it appears to me to militate against the construction which would extend the power of the barons of the exchequer to a proceeding beyond the precincts of their own court. Besides the company in which the word “practice” is found, both clauses of the section provide for the exercise from time to time of the powers which it confers. It has been argued, and perhaps correctly, that if the barons possessed the power of giving an appeal, and executed it, it could not be recalled. But this appears to me to prove that the act could not apply to such an irrevocable power, but was intended to be confined to the adoption of such provisions of the common law procedure acts with respect to process, practice, and pleading as might properly be subject to alteration “from time to time,” according to the result of experience. It was argued that unless the power to extend, apply, or adapt any of the provisions of the common law procedure acts applies (among others) to the clauses giving the rights of appeal on motions for new trial, the powers given by the two clauses would be co-extensive, and the latter would be merely a repetition of the former. But it appears to me that the two portions of this section may be distinguished from each other, and that each may have its due effect. Alterations in the proceedings on the revenue side of the court of exchequer having been introduced by the act, some rules would be absolutely required to meet this new state of things. Accordingly, the former part of the section directs the barons to make such rules as might seem to them necessary and proper. But beyond these rules, which were indispensable, the legislature, considering that some of the provisions of the common law procedure acts, and the rules of pleading already made for the regulation of the pleading and practice on the plea side of the court, might possibly be usefully applied to the revenue side, but not having the practical experience necessary to enable them to make a selection for themselves, therefore by the latter part of the section they leave to the discretion of the judges to determine which of these provisions and rules, if any, it is expedient to adopt in order to produce uniformity in the proceedings on both sides of the court. My noble and learned friend (Lord Wensleydale) says, “The words of the latter part of the section, authorizing the chief baron and barons from time to time, by any rule or order, to extend, apply, or adapt any of the provisions of the common law procedure acts, are quite independent of the clause authorizing the application of the rules of pleading and practice.” But, with great respect, I would observe that in this portion of the section the sense is carried on from the words “and also” continuously to the end; that the whole of it must therefore be taken together in construction, and then it will appear that it is not to any of the provisions of the common law procedure acts absolutely that the power applies, but only to such as may seem expedient for making the process, practice, and mode of pleading on the revenue side of the court as nearly as may be uniform with the process, practice, and mode of pleading on the plea side of such court. We are thus brought back again to the point upon which the whole controversy turns— viz: the meaning of the word “practice” as it stands in the act. I have already endeavored to show that it cannot possibly apply to any proceeding beyond the court itself, and therefore those sections of the common law procedure acts which relate to appeals are not within the range of the discretionary authority intended to be conferred by the legislature. I have arrived at this conclusion with great reluctance. It is very much to be regretted that the crown should have been deprived of the means of appealing from the decision of the court of exchequer upon a question of national importance. I should have been glad to find some reason for supporting the validity of the rule issued by the barons, but I can discover none. I must therefore act upon the clear conviction of my own judgment, and pronounce my decided opinion in favor of the respondents.

Lord Kingsdown. The argument in the first question in this case, the power of the court of exchequer to make the orders in question, has been so entirely exhausted that it would be improper for me to go into it at any length. The reasons assigned by the majority of the judges in the exchequer chamber appear to me to preponderate, and the grounds on which my judgment rests are laid down more clearly than I could state them in the opinion of the lord chief justice. Previously to the Queen’s remembrancer’s act, there were, as I understand, no means of reviewing a decision of the court of exchequer on the revenue side except by writ of error. Under the two acts of common law procedure of 1852 and 1854, there were on the plea side a more simple proceeding in error than by writ of error, and also the several other remedies introduced by the act of 1854. There was, further, the proceeding by bill of exceptions, independently of those acts. If all the proceedings in error and appeal applicable to the plea side of the court were considered applicable to the revenue side, there seems no reason why, by the act of 1854, they should not have been extended to both sides. The same observation applies to the act of 1859. Why, if they were thought by the legislature to be all applicable, were they not all applied? But, instead of taking that course, the legislature makes a careful selection of some clauses and omits others. With reference to the particular matter now in question, it omits the appeal from the decision on a motion for a new trial, and gives, as I think, in substitution for it, the proceeding by bill of exceptions. It has been said that the same relief may be by both these modes of proceeding, but that there are many difficulties in the latter which are not found in the former. If this be so, the crown may have been willing to give the right of review, subject to the restrictions which those difficulties might impose, but no further; but that, contemplating the application of both remedies, the legislature should itself give the one and least convenient, and leave it to the court of exchequer, at its discretion, to give or withhold the other, is to me quite inconceivable. It may have used words so large as to compel us to say that this power is given; but if the clause be capable of two constructions, I think that should be adopted which is most consistent with the probable intention to be collected from the other clauses. When the words of the 26th section are examined, it seems to me that they neither require nor warrant the larger construction. The clause is introduced for the purpose of enabling and directing the court of exchequer to make rules and orders for regulating its process, practice, and mode of pleading, with a view to the alterations introduced by the act, and to making such process, practice, and mode of pleading, as nearly as may be, uniform on the two sides of the court. For this purpose, and, as I understand it, for this purpose only, it may extend, apply, and adapt any of the provisions of the two acts of 1852 and 1854. Bead in their ordinary meaning, as applied to proceedings within the court itself, the words are reasonable, consistent with the other provisions of the act, and in accordance with what is found in the two acts referred to. They are consistent also with the provision that the rules may be made from time to time, and with the fact that the same words which apply to the provisions of the two acts are applied also in the expressions immediately following to the rules of pleading and practice on the plea side of the court. I am by no means satisfied that there is any redundancy in the language of the clause thus construed; but if there be, it is not, in my opinion, sufficient to outweigh the objections to the other construction. What the court of exchequer has attempted by its order to do is to give to two superior courts—the exchequer chamber and the House of Lords—jurisdiction to hear, and to impose upon them the duty of hearing, an appeal against its decisions, with which, except for those orders, those courts would have neither the duty nor the right to interfere. Can it possibly be said that this is to regulate the practice of the court of exchequer? All the proceeding which leads to the other courts, when those other courts are open, all the proceeding to error, is a step in the cause and part of the practice of the court; but whether the doors of the other courts are to be open or not surely is not a point of practice in the inferior courts. It is said that the legislature has already given the appeal by means of a bill of exceptions, and that what is now proposed to be done is only to do the same thing in a more convenient form. But the answer to this seems to me to be, that the legislature has given no general power to the superior courts to review the decisions of the court of exchequer. It has prescribed certain special modes of proceeding by which this may be done, and has by necessary implication excluded others. The law before the orders said, “the decision of the court of exchequer on a motion for a new trial shall be final.” The orders say it shall not be final. It is not a new mode of effecting an object which could already be attained in a different mode. There was no mode whatever then subsisting by which the order now complained of could have been disturbed. There was a mode by which the necessity of moving for a new trial might have been prevented; but that is quite a different thing, and it is not because that mode has failed (no matter from what cause) that the court of exchequer can create a new jurisdiction which the legislature has not created, and, in my opinion, has not authorized the court of exchequer to create. Having arrived at this conclusion on the first point, I think it unnecessary to say anything on the second.

The effect of the judgments is, there being a majority of four to two against the crown, that the verdict of the jury in favor of the claimants of the Alexandra remains undisturbed.

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From the London Times, April 7, 1854.—(Editorial.)

Yesterday the House of Lords gave a judgment adverse to the crown in the case of the Alexandra, on the preliminary question as to the power of the court of exchequer to make the rules under which the case was taken before the exchequer chamber and then to their lordships’ house. Four lords, the chancellor, and Lords St. Leonards, Chelmsford, and Kingsdown, upheld the judgment of the exchequer chamber, which dismissed the appeal from the court below, and two, Lords Cranworth and Wensleydale, were for reversing that judgment. The result is that the decision of the court of exchequer stands. That decision was in favor of the defendants, “Sellim and others,” the four judges being equally divided, and Mr. Baron Pigott having accordingly withdrawn his judgment. The public will be rather disappointed to find that the law on the principal questions involved is not to be declared by the highest tribunal in the realm, but that the final decision has been pronounced on a technicality subtle and narrow beyond even the ordinary narrowness of the law. We had hoped that when such great interests were involved in the decision, when such an expenditure of time and trouble and money had taken place in asserting the control of the crown on the one side and the right of individual action on the other, the nation might have had the benefit of the ably conducted contest and learnt on the highest authority what construction was to be placed on the foreign enlistment act. But for the purposes of settling the law the Alexandra case has been a failure. For the present the victory remains with the defendants, but it is impossible to suppose that the government will acquiesce in the law as laid down by the two senior judges of the exchequer, or fail to bring any new offender to account, even if it should render necessary another struggle in the courts of law. This is to be regretted. Yet the question that was yesterday decided, though it has nothing to do with the foreign enlistment act, is sufficiently interesting to receive the attention even of those who are not professional lawyers. It had divided the court of exchequer chamber—four judges of the Queen’s Bench giving a judgment contrary to three judges of the common pleas, and holding the opinion which the House of Lords has now declared to be the right one. The House of Lords itself is divided, the names of two such eminent common law judges as Lords Cranworth and Wensleydale being found in the minority.

If we may venture to analyze their lordships’ judgments, the two last mentioned based their decision on what they considered to be the strict literal rendering of an act of Parliament, while the four whose judgment prevailed took the broad view that for a court to empower a superior court to hear appeals from it was an absurdity, which ought not to be attributed to the language of any act. The question was whether the rules made on the 4th of November last were warranted by the 26th section of the Queen’s remembrancer’s act, passed in 1859. The state of things at the time the Alexandra case was heard in the exchequer was this: On the revenue side of the court either party—that is, either the crown or the defendant—might tender a bill of exceptions, and so bring the matter before the courts of error, the exchequer chamber, and the House of Lords; but if, instead of that course, either party preferred to move the court of exchequer after verdict for a new trial, there was no appeal to courts of error. In the Alexandra case this course was chosen, and the barons of the exchequer, desirous that the question should be taken before a higher tribunal, took advantage of the 26th clause of the Queen’s remembrancer’s act, which authorized the chief baron and two other barons to extend and adapt to the revenue side any of the provisions of the common law procedure acts, for the purpose of making the “process, practice, and mode of pleading” on the revenue side as nearly as may be uniform with the process, practice, and mode of pleading on the plea side. On the plea side there would have been an appeal in a case analogous to that of the Alexandra, and by the rules of the 4th of November last the barons of the exchequer allowed an appeal on the revenue side. The question was whether the words “process” and “practice” could be made to extend to giving a jurisdiction to another court, or if they were only to be interpreted as referring to matters determinable entirely in the court itself. Lord Cranworth argued that they were not justified in departing from the ordinary interpretation of words merely because they confer unusual powers. He proceeded to remark that the rules merely give to suitors on the revenue side of the court the same facilities of getting out of the court below and reaching the courts of error as are possessed by suitors on the plea side. “It does not give substantially any new right of appeal; for, looking to substance, not to form, the parly appealing is only doing what he might have done by bill of exceptions.” Thus Lord Cranworth would represent the change as merely one of “practice,” giving a suitor who had taken one form of questioning a disputed ruling of the judge at the trial the same facilities for going before the highest tribunal as are possessed by a suitor who had taken another. Similar is the reasoning of Lord Wensleydale, who says: “The true question for us to decide is, what is the ordinary and grammatical meaning of the words used in this section?” and he further declares that in his opinion there is nothing unreasonable in the doctrine that the legislature should delegate to the judges the power of making rules to facilitate and regulate appeals, when the ends of justice would be attained by such a provision.

But the lord chancellor, who spoke first, and moved that the appeal to the crown should be dismissed, took, with three of his learned compeers, a widely different view. The grounds of his judgment may be understood from one or two sentences. “The creation of a new right of appeal,” says Lord Westbury, “is plainly an act which requires legislative authority, and by which the court from which the appeal is given and the court to which it is given must both be bound, and that must be the act of some higher power. It is not competent to either tribunal or to both collectively to create any such right.” If the legislature were to give to a court the fullest power of regulating its own practice or procedure, “such power would not avail for the creation of a new right of appeal, which is in effect a limitation of the jurisdiction of one court, and the extension of the jurisdiction of another. A power to regulate the practice of a court does not involve or imply any power to alter the extent or nature of its jurisdiction.” It is impossible not to be impressed with the cogency of these remarks. The chancellor speaks as a jurist defending the principles on which all laws must rest. Of the rules themselves he says further on: “These rules are so many legislative enactments purporting to create a new jurisdiction in the court of exchequer chamber and the House of Lords, and prescribing the mode in which such new jurisdiction shall be exercised. It is simply an incorrect use of language to call such enactments provisions respecting the process, practice, and mode of pleading in the court of exchequer.” These and similar reasons prevailed with a majority of their lordships, the appeal of the crown was dismissed, and the verdict of the jury in favor of the defendants remains undisturbed.

However much we may admire the learning and subtlety displayed in this controversy, the more important question will still recur, what course the government intends to take in cases such as those of the Alabama, the Alexandra, and the steam-rams. Is it not a matter for legislation? Although the insolent assumptions of the northern Americans may make Parliament unwilling to pass new measures at a time when the presumed concession may be misinterpreted, yet, after all, we ought not to shrink from doing that which is not only just to others, but advantageous to ourselves. If the foreign enlistment act, according to the judgment of the court of exchequer, be insufficient to repress enterprises endangering the peace of the country, surely it is better to apply to the legislature than to trust that in some future case a resort to a bill of exceptions will carry the main question to a tribunal which may reverse the judgment already given!

[From the London Times, April 7, 1864.]

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Settlement of the Pampero Case.—We understand that the case of the Pampero will not now go to jury trial, an arrangement having been made for its settlement. We believe that by the arrangement the owners have consented to a verdict being entered for the crown, forfeiting the vessel on some one count of the information, to be selected by the owners; they making such explanatory statement on the subject as they may think desirable. It is provided, on the other hand, that the owners are to retain and trade with the vessel, but are not to sell it for two years, except with the consent of the crown; and that alterations are to be made on the structure of the vessel. We understand that the builders are no parties to the compromise, which provides for settling their claim and having it withdrawn from the proceedings.—Scotsman.