Appellate Committee of the House of Lords (Themiclesia)

The Appellate Committee of the House of Lords (告獻, skus-kngar) is a statutory committee of the House of Lords of Themiclesia and functions as the 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 old statute for the punishment of rape (now already superseded but considered instructive through precedents under it) 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 eventually found that, regardless whether the wife had agreed to make herself availabe, the husband may not do what the law forbids as a crime. 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 in writing to do so) 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.

Five Coins Case (1949)

After diplomatic relations with Dayashina were restored in the wake of the Pan-Septentrion War, the first embassy 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 silver coins (valued at 25 shillings in Tyrannian money) to Kishita and bade her keep quiet. But according to Ket, at the night of the incident, 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 rejected 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 said that it was conceivable the log could have been doctored, the EEA's grand jury still did not indict. 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 shillings is better than good money".

Unfazed by this denial, Kishita's father Saemon travelled to Themiclesia in early 1949 and petitioned the House of Lords to punish Ket for his misbehaviour after the Supreme Court of Themiclesia turned him away for lack of jurisdiction. The Clerk of the Parliaments initially found the question difficult to deal with, since normally the House of Lords only heard cases on appeal or impeachment trials, and the matter with Ket did not even reach trial before. However, having secured representation by Ree Ree Ree and Partners, the petition was edited to read that misconduct by a Themiclesian official was rejected for lack of jurisdiction, and the House of Lords must give justice to Kishita or it would be tantamount to admitting the actions of Themiclesian soldiers outside of Themiclesia were also outside of Themiclesian law.

After the case was presented by the Clerk, the Baron of Kyap, representing the Foreign Office, strenuously advised the house against opening substantive debate on the case, since the case would not be an appellate hearing but one where a house of Parliament exercised the Sovereign's reserve power to punish a non-parliamentary official, something which had not happened since 1863. Instead, Kyap advised the house to dismiss or suspend the case until the Baron of Sar could investigate the matter under his consular jurisdiction. It was asked how extensive the reserve power to discipline was, whereupon Lord President of Appeal Hrep CJ gave the legal position the power encompasses all crimes and can be used to order any punishment the House deems fit, including death.

The President of the Privy Council, the Baron of Myak, spoke against the procedure, to the effect that the reserve power is "reserved for the most extraordinary and exigent of circumstances" and "must be used as a final resort when all executive and judicial remedies have failed". He further said if the House were to punish Ket, the decision would also be a reprimand of extreme severity to dozens of military officers and even the War Secretary, to be followed by immediate resignations and pleas in confession and mercy. It would, according to Myak, amount to the House telling them they have failed so utterly and deserve to lose their offices, and such a decision would conceivably impact the reputation of the Themiclesian mission to assist the reconstruction of Dayashina, and there would be a rapist in the midst of a group of incompetent officials.

On 5 April 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.