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state of what, after all, is an important link between the colonies and the mother country.”
Mr. Deakin, Premier of Australia, at the Colonial Conference of 1907, said:—
“Since those events the Government and, I think, the great majority of the Parsiament and people of Australia have not altered their attitude upon this question. They are no more contented with the present condition of appeal cases than they were in 1900 or 1901. Nor are their sentiments likely to alter after the judgment given lately in an Australian case, in which two matters of vital importance came before the consideration of the Judicial Committee.”
The King's speech to the British Parliament in 1908, contained the following:—
“Much needed provision has been made for affording judicial assistance to the Judicial Committee of the Privy Council and to the Court of Appeal in England.”
Writing in 1909, Sir Frederick Pollock said that “it is really not plausible (sic) at this day to assert that the working of the Judicial Committee gives general satisfaction.”
As I write, comes the London Times of 28th May containing, editorially, the following: “There have been times in which the Judicial Committee did not rise to the height of its opportunities. A Court of three or four members reviewed, and perhaps overruled, the decisions of half a dozen colonial Judges. In such an event, the parties who were unsuccessful in the Privy Council were not satisfied; the Judges who were reversed were apt to feel aggrieved if, as often at one time happened, the Court decided the bare minimum necessary for affirming or reversing, laying hold of a subsidiary issue, determining it, but shirking the responsibility of dealing with the question mainly argued and chiefly interesting in the Courts below.”
In its issue of the previous day, a writer in the Times said: “Complaint has too often been made of late that important appeals have been disposed of by only three Judges, whereas the original tribunals in Canada or Australia were composed of double that number. Two appeals in the present lists are set down to be re-argued—an expensive result which might perhaps have been avoided if the appellate Judges had been more numerous.”
* A. F. Pollard: The Br. Fmp., p. 771.
These protests may be added: the elaborated criticisms of Mr. W. S. Deacon in 31 Canadian Law Times (1911), pp. 6-10, 123-8; and of Mr. Justice Clark in Australian Constitutional Law, pp. 335-57. A short account of Australian objection to appeals to London is given in my book The Kingdom of Canada, pp. 226-36. The handicaps under which the Committee labours, and which necessarily produce the general dissatisfaction appear to be the following:— (1) It is a final Court of Appeal; and has, therefore, no dread of higher judicial criticism. (2) It sits thousands of miles away from the countries appealed from ; and is, therefore, free from the professional criticism which, in England, attends every doubtful decision of the House of Lords. (3) Dissenting judgments not being permitted, it has no fear of criticism from its own members. (4) It suffers from a conviction of its own superiority— a conviction due (a) to the ruling character of the race to which its members belong, and (b) to the fact that, by sending our cases to it, we appear to acknowledge our incapacity. (5) The Committee has, frequently, no familiarity with local circumstances and practices, without which intelligent decision is impossible. (6) The Committee has the assistance either of English barristers, who themselves lack the necessary familiarity; or of Canadian barristers, who speak from one standpoint and are listened to from another. When the Australians, in 1871, were proposing the abolition of appeals to the Committee, their Lordships defended their jurisdiction in this way:“It is impossible to overlook the fact that this jurisdiction is part of Her Majesty's prerogative, and which has been exercised for the benefit of the colonies since the date of their settlement. It is still a powerful link between the colonies and the Crown of Great Britain, and secures to every subject throughout the Empire the right to redress from the throne. It provides a remedy in many cases not falling within the jurisdiction of the ordinary Courts of justice. It removes causes from the influence of local prepossession. It affords the means of maintaining the uniformity of the laws of England and her colonies, which derive a great body of their laws from Great Britain; and enables them, if they think fit, to obtain a decision in the last resort from the highest judicial authority, composed of men of the greatest legal capacity existing in the metropolis.” 1. Their Lordships are well aware that no subject has “ the right of redress from the throne;” that the Sovereign never hears or reads a word about any of the cases; and that the appeal is not (except in name) to the King, but to certain gentlemen nominated (for the most part) by the British Government. Their Lordships themselves say that the decisions are those “ of men of the greatest legal capacity existing in the metropolis.” And is it not a mockery to speak of the right of “every subject . . . to redress from the throne,” when the enormous cost renders appeals almost prohibitory. 2. Their Lordships are well aware that their jurisdiction is not (except in name) part of the Sovereign's prerogative. From the actual exercise of that, and nearly every other part of the old prerogative, almost the only person excluded is the reigning Sovereign. 3. “It removes causes from the influence of local prepossession " And it places them, unfortunately, under the influence of British prepossession. It brings them for adjudication to men utterly unfamiliar with the system of which they form a part—to men who see little of the back-ground and perspective which is necessary to a proper realization of the point in controversy. The advantages of local prepossession were not sufficient to induce the British people to accept Mr. Chamberlain's proposal of an “Imperial Court of Appeal” for both British and colonial cases—a Court in which colonial Judges would sit in appeal from British Judges. There is not a lawyer in the British Isles who would not laugh at the suggestion. 4. “It is still a powerful link between the colonies and the Crown' That would be true if the appeal were to the Crown. It is not. It is an appeal (very largely) to British Judges. It is merely a part of our former colonial subordination. 5. “Uniformity of laws!” If uniformity be a desideratum, we must commence not with the Courts, but with the Legislatures. In Canada we have nine of these making diverse laws; in Australia there are six; and in the United Kingdom although there is but one Parliament (thus far) there are frequently diverse laws. Uniformity In the debate on the Australian Commonwealth Bill, Mr. Asquith gave their Lordships credit for acting on precisely the con. trary principle, saying that it had been the special care of their Lordships to maintain “most jealously and scrupulously, the integrity of the different system of laws,” and they “ have prevented, as far as they can, any filtration of ideas from a foreign source of law which might permeate and corrupt another system. . . . You cannot have a uniform interpretation of diverse systems of law.” None of the reasons given by their Lordships for the perpetuation of their jurisdiction has the least validity. And if it be said that a good reason exists in the insufficiency of our own Supreme Court I reply:— (1) The Court, as now constituted, is a good Court. It is able, courteous and painstaking. It never falls into such gross errors as not infrequently characterise the judgments of the Judicial Committee. (2) The Court ought to be strengthened. We ought to have three more Judges—two skilled in English law, and one in the French law. (3) If the Court were a final Court of Appeal:— (a) Men who decline appointment would accept it. (b) Governments would be more careful in their se. lections. I am aware that, in the past, Government offers of appointment have frequently been met with refusal. Did ever a United States lawyer decline elevation to his Supreme Court? In Canada we have men capable of building and managing railways on colossal scales; men capable of conducting immense financial undertakings; men capable of directing educational institutions of the highest merit; men capable of originating and making successful vast business enterprises; men capable as mechanics, inventors, dentists, dootors, statesmen. ARE THE LAwYERS THE oxLY IMBECILEs?
EQUITY AND THE COMMON LAW.
That equitable principles must influence the process of the common law is indisputable, and this doctrine has so important a bearing upon the formation, expansion, and interpretation of law and in the administration of justice as to justify an endeavour to examine its position in regard to the growth of the common law in England. The extent to which the influence of equity should operate upon the law is a difficult question, since equity, as its name implies, connotes a discretionary power which is necessarily a variable quantity. Without discussing in any detail the various meanings which have from time to time been attached to the word “equity,” suffice it to say that for the present purpose it must be taken in its broadest and true significance, to denote a principle, or set of principles, and not a specific department of law. In order fully to appreciate the doctrine of equity, it may be well at the outset of the present inquiry to recall the origin of the term and to observe the kind of influence which it has been employed to express. Without some general impression of the origin and history of equity jurisdiction, it will be difficult to ascertain the precise nature and limits of its influence in our judicial system. The Latin Aequitas, which, according to Sir Henry Maine, is the equivalent of the Greek word zoluch, carries with it a sense of levelling, and it is this levelling tendency that, as he has explained, identifies Aequitas with the Ius Gentium of the Roman lawyers, and with the Ius Naturale of the Stoic philosophers. Perhaps the most explicit interpretation of the term “equity” is “reasonableness,” or “reason;” and in this sense equity has sometimes been described as a standard or ideal with which the law ought to conform, and which therefore should associate itself, not only with the framing and formation of law, but also with the modification of existing law where this is rendered necessary by the general progress of human affairs. The meaning of reasonableness we get in the
*Sir F. Pollock, in his note to Maine's Ancient Law, at p. 77 says: “This conception, when embodied for practical use as an appeal to the common sense of rightminded men, is closely akin to that of natural justice.”