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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 contrary 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. (6) Governments would be more careful in their selections.
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, doctors, statesmen. Ahe The Lawyers The Only Imbeciles?
John S. Ewart.
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 ;'n 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
1 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."
Middle-English " epicheia," which is synonymous with equity,1 and which is obviously borrowed from the Greek dikaion employed by Aristotle to distinguish equity from law, epieiklia.
John Gerson, who was the leading exponent of legal doctrines in the nTiddle ages, describes the influence of epieiklia in these words: "aequitas quam nominal philosophus epiieiam praeponderat iuris rigori. Est autem aequitas iustitia pensatis omnibus circumstanciis particularism dulcore mkericordiae temperata. Hoc intellexit qui dixit. 'Ipsae autem leges cupiunt ut iure regantur.' Et sapiens. 'Noli esse iustus nimis alioquin summa iustitia summa iniustitia fit.' "4
It is in this same sense that Cicero spoke of Aequitas as the spirit of the law and of Ius as the letter of the law.5 Also Glanville, writing at the end of the twelfth century, alludes to the virga aequitatis in describing the spirit in which Henry II. administered justice:
"Ut utroque tempora pacis et belli gloriosus Rex noster ita feliciter tramigat, ut infrenatorum et indomitorum dextra fortitu,dinis elidendo superbiam et humilium et mansuetorum aequitatis virga moderando institiam tam in hostibus debellandis semper victoriosus existat quam in subditis tractandis aequalis iugiter appareat."*
It is unnecessary to multiply instances in illustration of the spirit of equity, but the distinction between "equity" or "natural justice," or "reasonableness" on the one hand, and the common law on the other, is so clearly expressed in a modern French definition that we cannot refrain from quoting it :—
"On entend par droit naturel le droit ideal, celui qui est le plus conforme aux idees de justice, et dont la legislature doit s'efforcer de se rapprocher le plus possible, dam la confection des lots. On entend par droit positif la loi qui est en vigueur a un moment donne sur le territoire d'un EtaA Lorsqu'une loi est mal faite, lorsqu'elle blesse les idees de justice et d'equite, on dit qu'elle est contraire au droit naturel,""
It is obvious, then, that the broad principle underlying the doctrine of equity in its widest sense, is, and always has been,
■ Thus John Fi 3her has spoken of "epicheia whiche is proprely the uiynde of the lawe," John Fisher, Penit. VII. Ps. 4Gerson. "Regulae Morales'' (Op. ii. F).
•" Galba autem adludens varie et copiose multas similitudines adferre multaque pro aequitate contra ius dicere," Cicero de Oroat. i. 56 E. 240.
* Glanville, Prolog, iii.
'" La Synthase du Droit," par Boitel et Foigrnet.
one of reasonableness and natural justice in the protecting of rights and prevention of wrongs, and it is not unnatural that such a principle has been closely associated with the growth of the law; indeed it would be strange if it were otherwise. With this general outline of the nature of equity, short and imperfect as it necessarily is, we may now pass to consider the mode and extent of its application in our own legal system.
The common law of England may be said to have taken shape towards the close of the twelfth century, when a record of decisions of the Courts was first kept. Prior to that time the law was naturally somewhat crude. There were no definite precedents to be followed, and there were no established principles for the guidance of the Court. Yet in the administration of this vague justice it may well be supposed that an equitable spirit granted relief in cases of particular hardship, though it is difficult to trace any clear acceptance of the principles of equity before the reign of Henry IT. From that time onward records of judicial proceedings were collected, and our common law consists of the great mass of these compilations, having been gradually built up during centuries from decisions upon cafes for which no previous provision was made by the existing law. They were decided, of course, as they had to be, according to a discretionary view of what was right and just. Each new decision then became a precedent to be followed in settlement of subsequent questions of a similar nature, and it is these precedents which form the common law of England as we know it. It is the strict and binding force of these precedents which has sometimes been described as the rigour of the law. Whether or not in particular cases where the application of the law rreated hardship, equity was at this early period (twelfth century) permitted to vary established precedents in the interests of justice there is no absolute certainty, though in the words of Lord Lyttleton "as in those days there was no distinct Court of Equity, the Judges of the King's Court had probably a power of mitigating in some cases the rigour of the law."8 An instance of such equitable relief is given by Glanville with reference to the early law of succession: "Super hoc ultimo casu in Curia Domini Regis fa, consUio Curiae itn ex aequitate consideratum est . . ."0
The rigidity of the common law was exemplified in the strict formality which had to be observed by those who
8 Litt. HiHt. of Life of Henry II., vol. 3, 8th ed., p. 315.