Appellate Committee of the House of Lords (Themiclesia)
The Appellate Committee of the House of Lords (告獻廷, skus-kngar-ling) is a statutory committee of the House of Lords of Themiclesia and functions as its court of last resort.
History
The modern Appellate Committee is a continuation of the judicial functions of the Council of Waiting Peers (侍中侯省). Anciently, affairs of state were delegated to the Chancellor (相邦), and judicial functions specifically (at least partially and to varying extents) to the Justice of the Royal Court (廷㷉). The Justice heard cases referred to him by the sovereign or other justices sent to the provinces and also reviewed certain cases, mainly those involving capital punishment, as a matter of course. But it was possible, if infrequent, for the Justice to refer cases to the sovereign in open court for final adjudication. No firm rule seems to have governed this process except the identity of the parties—members of the royal family and the nobility had a recognized privilege to appeal to the crown if facing conviction.
Over multiple centuries and evolving arrangements of power, appeals to the crown were regularized. Since the sovereign was rarely able to resolve a legal difficulty that has outfoxed experienced judges, the case was invariably opened before a full court, which deliberated and then advised the sovereign to render final judgement; such a procedure is likely to have alleviated from the ruler personal responsibility for any poor judgement and also prevent the seeking of private or further redress, as a judgement passed by the entire aristocracy. By the time of the Themiclesian Republic, this function was evidently so ingrained that, even in the absence of a monarch, it was still carried out by an assembly of nobles. However, this procedure had its drawbacks, as a full assembly of the crown's peers was not a regular occurrence in the 16th and 17th centuries, and such an appeal could be a tactic for undue delay or to fatigue another litigant into abandoning the suit.
After a ruler was restored to the throne, it became the rule that appeals from the Justice of the Court were heard by the Emperor's council of barons in waiting, who were a group of nobles who attended to the emperor personally in the imperial palace (as opposed to discharging functions in the provinces or spending time at home). Judgements were made by this council after at least a ceremonial conference with the crown, which was a regular occurrence by all accounts. This court had the advantage of a relatively disinterested group of judges, since the barons in waiting were less likely to be involved in contentious matters outside of the court, but it also was constrained by a lack of judicial experience. After complaints by not less than judges themselves, it became customary to appoint at least one judge as a baron in waiting to provide experience.
Thus, by the middle of the 16th century, Themiclesia effectively had a three-tier court structure: a civil or criminal case began in a provincial court, and appeals against whose judgement took place before the Justice of the Royal Court, and a further appeal was possible before emperor's barons-in-waiting.
Cases
Marital rape case (1922)
This case concerned a husband raping his estranged wife, who had lived separately for eight years. The wife filed a complaint after the incident, bringing the charge of rape against her husband under counsel. The case was resolved in favour of the husband initially in the Supreme Court of Themiclesia but then reversed in the High Court of Appeal, at which the Supreme Court re-sentenced the husband to life imprisonment, the mandatory punishment for rape.
Historically, Themiclesian law had been silent on the subject of sexual relations between lawfully-wed spouses. In the traditional view, the criminality of rape was the act of penetrating a woman while using force, i.e. the female victim must have been penetrated by the perpetrator while subject to the same perpetrator's force. That is, if A held the victim down by A's own force, and another B penetrated and used no force, neither A nor B were guilty of rape, since A lacked the element of penetration, and B that of force. The force applied does not need to be great, dangerous, physically contacting, or proportional to the victim's resistance—that it runs against the victim's will and changes her behaviour is sufficient.
But in 1771 another case was debated whether it was possible to rape an unconscious woman, the rapist claiming that he had not caused the unconsciousness and then used no force to penetrate the victim. The judges ruled that even if a woman's will was "made mute" by her unconsciousness, "it is only natural and to be assumed" that a person is against having sex while unconscious. Thus, it was also the rule that if the victim was in an unconscious or mentally-altered state (whether self-imposed or cuased by others), the force element is "implicit within the act of penetration". This is true even if the victim can outwardly act and speak, such as while inebriated, for which the judges said that the tongue was awake, but the mind unconscious.
This rule was confirmed in 1841, when the Supreme Court of Themiclesia found that a man committed rape when he threatened to burn down a woman's house unless she had sex with him. By this point, the element of force was more broadly interpreted as anything which caused the victim to change her behaviour when she had no such obligation and which made penetration possible. Another case in 1851 had found that the act of locking up all the doors and windows to the victim's room was sufficient to constitute force, even if the victim did not subsequently struggle against the rapist.
According to the majority position as understood in the 1922 case, no law specifically absolves a husband from the criminality arising from penetrating his wife while subjecting her to his power, and the statute for the punishment of rape makes no difference of marital state. Arguments from the husband were heard to the effect that the wife, by way of her written marriage declaration and holiday cards wishing him many offsprings, had agreed to make herself available to him sexually for the purpose of procreation, and the husband was yet childless, and so the wife could not prosecute him for rape.
The husband further spoke before the Supreme Court that a prostitute's client was lawfully allowed to penetrate her as there was an agreement beforehand; for the same reasons, he sought to show that he had obtained her wife's agreement. His comparison of his wife to a prostitute, however, proved highly impolitic and provoked not only disbelief from the bench but public outrage. Several indignation meetings were held by both women's groups and public associations against the wife's degredation.
The wife averred in writing that:
Even a prostitute makes herself available to a man on day for a fee, but by my husband's reasoning a wife makes herself available to her husband forever and for nothing. Pray now judge if that is the meaning of Marriage, merely a permanent and unprofitable state of Prostitution. Pray now judge if a wife's affection is a Good to be delivered as Conveyance in a Contract.
It has been noted that the wife's prosecution was rather carefully planned to give the impression that the wife was primarily concerned with the institution and obligations of marriage, while her attorneys carried out most of the legal reasoning.
The High Court of Appeal ruled that the wife's marital commitments were not material to the case because the husband's actions were inherently criminal. The wife's counsel had argued that a creditor seizing a defaulting debtor into his own hands and compelling him to work off the debt (even if the debtor had consented by contract to be compelled to work) would still commit the crime of slavery, since the law forbids the seizing of other persons into one's hands as an act inherently worthy of punishment. Likewise, the law completely forbids the putting of women under force and then penetraing her, and so the wife's marital commitment (which was a formality of dubious legal effect) and holiday cards (certainly of no legal effect) could not be material. The House concurred with the wife's arguments and affirmed the husband's sentence to imprisonment for life.
In 1962, the Offences Against the Person Act superseded and abrogated the old rape statute, which was centred on the actions of the male party, and instead placed emphasis on the consent of the female party. Thus, it was no longer necessary to frame some part of the offender's actions as "force", which had a very elaborate definition by the post-war period. The same law also altered mollified the punishment for rape with sentencing discretion, which depending on the circumstances could be used to imprison the criminal for 5 years up to life. The old law did not allow sentence discretion and stipulated that rape was to be punished by life in prison; in practice juries could sometimes eschew a conviction altogether if they believed the offender was not to be put away forever, troubling prosecutors whether to lay the charge of rape at all. The possibility of a lesser sentence was argued to place less strain on a jury to convict. The same was effected for the "big three" charges, i.e. rape, murder, and organized burglary.
Effectiveness of statutes in case of jeofails in the protocol and eschatocol (1936)
Under the argument of protecting the peace in the verge of the capital city during the Pan-Septentrion War, Parliament passed a special statute, cap. 122 Qin 14, imposing as much as two years' imprisonment for individuals who were found to have violated curfew or air raid warnings repeatedly. The standard protocol and eschatocol of Themiclesian statutes were long, reflecting the process of presenting the text of the statute to the crown, obtaining his assent before a group of authorized courtiers, and proclaiming of the statute to a relevant executive authority. These procedures are considered mandatory parts of the statute, even if they do not affect its meaning, to render it lawful and effective.
寺御事奏相上某書、
[日]某矦寺中眔以聞。[日]某矦寺中眔請許。
[日]某矦、某矦、某矦寺中、可。
[年日月]顯暘御事璽以寺中璽、當以時[年日月]謹奏也。
[年日月]吏請。
宜依。
可。
Five Coins Case (1949)
After diplomatic relations with Dayashina resumed after the Pan-Septentrion War, the first embassy to Nakazara was led by the Baron of Sar in 1947. In the following year, the military attaché Lieutenant-Colonel Ket was accused of raping a Kishita Aokumo, a Dayashinese girl whom he met at a public house in Nakazara in the evening of October 7. Kishita stated that the sexual assaut occurred in the back alley of the public house, after which Ket gave five coins (valued at 25 guilders in Tyrannian money) to Kishita and bade her keep quiet. According to Ket, in the night, he had indeed met Kishita and given her five coins in sympathy for her indigence, but, before the alleged time of the incident, he had already returned to the premises of the mission. A complaint was filed with the Themiclesian mission, which was not responded to for lack of evidence.
Kishita's parents wired the same complaint to the East Expeditionary Army, then headquartered in Sunju, Menghe, as Ket was seconded from this force. After soliciting evidence, in particular the entry and exit log maintained by the embassy that indicated Ket entered the embassy prior to the time of the allegation, a grand jury in the EEA decided there were insufficient grounds to indict. While Kishita's father suggested the log could have been doctored, the grand jury still returned an ignoramus. Later scholars, studying the transcripts of the grand jury hearing, suggested some jurors may have mischaracterized Kishita as a prostitute, even though none of the affidavits described her that way; in particular, an unnamed juror said that "25 guilders is decent money". The investigating prosecutor failed intentionally or unintentionally to correct the jury's misimpressions.
Unfazed by denial, Kishita's father Sawemon travelled to Themiclesia in early 1949 and petitioned both the Privy Council and the House of Lords to punish Ket for his misbehaviour after the Supreme Court of Themiclesia turned him away for lack of geographic jurisdiction. The Privy Council flatly refused to hear Sawemon's case, saying that the executive power cannot punish a person without a court's judgment. The Clerk of the Parliaments summoned Sawemon and said the House normally heard cases on appeal or impeachment trials, pointing out his daughter's case has not reach trial. However, Ree, a barrister before the House, suggested Sawemon reframe the petition. In brief, he should ask the House whether the Supreme Court was right to turn his case away and, if it was in error, ask for an order directing the Chancellor to issue transferring writs from the EEA's military courts to the Supreme Court, so that Sawemon did not need to deal with a grand jury located in Menghe.
After the case was presented by the Clerk, the Baron of Kyap, representing the Foreign Office, strenuously advised the house against opening any substantive debate on the case, since the case would not be an appellate hearing but a direct decision to punish an executive official, which last happened in 1903. Kyap said the evidence "as it stands" in favour Kishita was "so remote and minuscule" that it would be "an indignity to the House to take any action upon it". Instead, Kyap advised the house to dismiss or at least adjourn the petition without acknowledgement until the ambassador could re-investigate the matter. The House accepted Kyap's suggestions and ordered Sawemon to return in four months' time.
By the time the re-investigation finished, Sawemon was disappointed to find out that Sar recommends "no action be taken against the Lieutenant-Colonel Ket for want of substantive evidence of criminal behaviour". Sar suggested that Sawemon should contact the Nakazara police for other possible assailants since "Kishita may have mistook her actual assailant for Ket". After confirming with his daughter that Ket's identity was unmistakable, Sawemon again presented his original petition and asked the House to exercise the power to discipline and dismiss Ket from office and turn him over to the courts for trial.
The President of the Privy Council, the Baron of Myak, spoke against the procedure, to the effect that Sawemon's suggestion was extreme and "Parliamentary action must be solicited only as a final resort when all remedies have failed". He presented several previous cases and noted that the procedure was useful for "treasonous princes and other evil persons of great might that courts would not judge", and Ket is not such. He further said if the House were to convict Ket despite ignoramus bills by two distinct grand juries, it would send reverberations throughout the judicial world; moreover, dozens of military officers and even the War Secretary, would be at the House's mercy. That is because individuals previously convicted by Parliament were by default sentenced to death but, short of treason, could usually redeem their life by forfeiting all their property less the bare minimum for life.
On 5 June 1949, Ket committed suicide by carbon monoxide poisoning. Regarding the case, he only left a note saying "I have never solicited that prostitute, but it brings my Sovereign and his Parliament into disrepute and squalor to continue this discussion". This note was immediately leaked to the Themiclesian press and used to argue both his innocence and his guilt. For the former, the note argued that Kishita's case was completely frivolous and possibly libellous, and for the latter, it suggested that he had raped the girl because he did not wish to solicit her as a prostitute. On 15 May, the Clerk of the Parliaments notified Kishita's father that the case was formally closed, as Parliament cannot put a person on trial posthumously, and gave him ₤40 in view of the expense of travel and lodging in Themiclesia.
Penal slavery (1977)
The practice of slavery was historical in Themiclesia until its abolition in 1841, after which the Interests in Persons and Their Bodies Act guaranteedd that no person's body may be a good to another person natural or corporate, or "all his labours" owned without compensation given in return. Prior to 1841, the ownership of slaves had already been restricted to the Crown and the bodies-politic of his viceroys, whose slaves were employed in public works under government direction and supervision of statutory officials. However, rather than stating that each slave was entitled to receive food and accommodation, the law did not recognize them as entitled to anything since slaves could not be entitled to anything; the officials were required to provide them instead.
In 1853, however, the abolition of capital punishment caused the practice of penal slavery to be revived. This is because the manumission of all slaves in 1841 had resulted in increasing costs for towns and viceroyalties to contract free labourers performing the services that slaves had once done, and such burdens fell to the landed gentry (who paid most local tax). So, in Parliament, it was decided that condemned prisoners should take the former place of slaves. At the same time, the Interests in Persons and Their Bodies Act was not modified, so technically new penal slaves were not owned by the Crown, though statute provided that the Crown was entitled to their labour even though their ownership was in legal limbo. Thus, the legal status of persons consigned to penal slavery was a bit of a mystery.
Penal slavery was repealed by statute in 1911, and all slaves were commuted to life in prison. Those that did not die in prison were freed in 1947 under the general amnesty and formed the Restitution Association, which campaigned for the recognition of their work as penal slaves and demanded compensation. The legal reasoning was that as the section 2 of the IPBA had forbidden the ownership of a person's body as chattel and "all labours" of a person without compensation given in return, the Crown had not been legally entitled to their work yet put them to work by false pretenses or force. The government's counter-argument is that section 2 forbade the creation of new interests in persons' bodies and all their labours but did not itself retroactively withdraw recognition lawful interests that had existed up to that point, which is why section 5 was necessary to manumit the Crown's existing slaves in 1841.
It argued, at any rate, the 1853 act abolishing capital punishment and sanctioning penal slavery in its place should constitute an exception to the IPBA and not a violation. Furthermore, while the 1853 act had left the legal ownership of the penal slaves indeterminate, it did impose the condition of slavery and grant to the Crown the power to compel them to work, and so the question of who actually owned the penal slaves was not material. The plaintiffs took the position that it would be illogical to transfer the right to compel them to work, which is an adjunct to their servile condition, if their bodies had not been owned in violation of the IPBA. Against this, the Government changed its line in 1973 (to general surprise) that the act of compelling them to work was not based on an entitlement out of their servile condition (which it conceded would be unlawful under the IPBA and not explicitly created by the 1853 act), but an ab origine power created by Parliament under the meaning of the 1853 act.
The matter sparked no little controversy in the legal community as the court proceeded to examined whether the condition of slavery could exist independently of a lawfully-held interest in the slave's body, which by definition must be held by some person, natural or corporate, capable of owning property. The plaintiff's argument generated much sympathy, if not resonance, in the community, which tended towards the more literal view that the 1853 act did not create interests in the penal slaves' physical bodies, and so Parliament could not transfer a non-existent right to the Government. Those with such sympathies supported the ex-slaves' campaign with voluntary legal work, stating the Government should pay a compensation per diem they had been put to work. A minority of legalists supported the Government's position that the ex-slaves' work was ordered by Parliament by virtue of its sovereign and unlimited power, and not conditional upon their being owned by some entity.
By 1977, most of the former penal slaves had died, and only about 400 remained alive and increasingly elderly. The Progressive government initially sought simply to wait until all the defendants died. Taking cognizance of the physical frailty of the plaintiffs, the Government was ordered to produce answers before the Supreme Court of Themiclesia. When the trial opened, the debate quickly seized on the topic whether Parliament could, effectively, authorize a person to be compelled to work (explicitly) in the manner of a slave without creating an interest in that person as a slave, whether in the person's physical body directly or in "all their labours without compensation given". The Government had hoped that by putting focus on the extent of Parliamentary powers, the courts would rule themselves incompetent to opine on Parliamentary powers, such as most of the time they have done before. For the Government, Terry Ree said that Parliament could
... give and take away rights; by the act of giving a right is created, and by the act of taking away a right is destroyed; by taking away a right, Parliament does not arrogate such a right to itself, or to the nation, and so it does not owe to the party from which the right is taken any compensation for the right taken. Instead, when Parliament takes away a right, that right is simply declared to be non-existent and vanishes without a trace from the law. As much as it is regrettable to state, and with the most resolute possible assurance such a thing could not possibly happen in our time, with the good and compassionate judgement of our people in our highest estimation, there is no cause to doubt whatever that the 1853 act created such a power despite such representations by the plaintiffs and vested them in His Majesty's Government, which power was exercised not with callousness but with tenderness, evidenced by the variety of officials appointed for the sole purpose of making life tolerable for those who would have been condemned to die for various offences like murder and rape.
However, Parliament intervened in November 1977 and passed the Reconciliation Act granting a sum of money to each ex-slave per day of work performed. The act did not state whether their forced work was lawful or not. The Act stated that its passage shall "close the discussion of slavery in this country this time and for all time to time".