- The Empire Club of Canada Addresses (Toronto, Canada), 18 Nov 1909, p. 30-37
- Denton, His Honour J. Herbert, Speaker
- Media Type
- Item Type
- The policy of the British Government not to impose upon conquered people at once and for all time the laws of England, but rather to allow the laws and customs of the people so conquered to remain in the acquired territory so far as the same is practicable. How that policy differs from other empires throughout history. Judging the British policy by the success of British colonial government. Some very curious and interesting results which this policy so adopted and enforced has brought about. A journey through the British Empire to examine the results of this policy. Asking how and by what authority, and by what means are these laws enforced: by and through the local courts of the various possessions. One final Court of Appeal for the Empire, before which all the customs and laws and systems come up for review and consideration: the Judicial Committee of the Privy council. The jurisdiction of this Committee based upon the right that every subject has to lay his grievances at the foot of the Throne. The development of the Privy Council, and then the Judicial Committee of the Privy Council. The structure and organization of the Committee. Instances of some interesting cases. The political significance of the Judicial Committee. This Committee one of the legal ties of Empire. Objections to this Committee, and the speaker's response to them.
- Date of Original
- 18 Nov 1909
- Language of Item
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- Full Text
- SYSTEMS OF LAW WITHIN THE EMPIRE.
An Address by His Honour J. HERBERT DENTON, K.C., Judge of the County Court of York, before the Empire Club of Canada on November 18, 1909.
Mr. President and Gentlemen,
I regard it not only as a privilege but also as an honour to be invited by my esteemed friend, Dr. Clouse, your President, to say a few words to you at one of your famous mid-day luncheons. I have all the greater pleasure in doing so for the reason that I understand your Club owes no allegiance to either political party and has for its chief aim and object the furtherance of the interests of Canada and the Empire. It was with some hesitation that I chose my subject for this address, firstly because it is one of those subjects which perhaps require, in order to be comprehensively treated, a little more time than we have at our disposal today; and, secondly because, having within it some of the dry bones of the law, I had some doubt as to whether I could interest you sufficiently in it. However, I do not wish you to understand that I am going to treat of the science of the law in general or in the abstract. I intend rather to treat of some of the different systems of law that are to be found within the boundaries of our great British Empire.
Let me say, first of all, that it has always been the policy of British Government ever since we began to have colonies at all that when a new territory is acquired either by conquest or by treaty, not to impose upon the conquered people at once and for all time the laws of England, but rather to allow the laws and customs of the people so conquered to remain in the acquired territory so far as the same is practicable. In that respect we have differed from the policies adopted by Empires that have gone into history. The Roman Empire, very generally, (though there were exceptions) insisted upon the Roman Law being enforced throughout her boundaries. Napoleon, after he had prepared and introduced that wonderful Code of Civil Laws which bears his name, insisted likewise that those laws should be enforced generally throughout his Empire, and they were enforced. Speaking of Napoleon, I know that there are a great many who severely criticize him, and I have in mind now the remarks of an eminent Englishman, Lord Coleridge, who characterized Napoleon as a man who with Julius Caesar and some others ought to be looked upon as "one of the greatest butchers and slaughterers that a merciful God ever allowed to tramp over and devastate His earth." Whether Napoleon deserves this or not, one thing he did--one great beneficent act--he gave his mind and his great military and political influence to the preparation of that wonderful Code of Civil Laws.
Then it is a matter, too, of history, that Spain reared a Simon Bolivar, and lost all her American possessions because she refused to adopt what the English policy has always been in Colonial Government. Our policy, which I think is the best policy, was a new policy in Empire. I know there are some who say we have gone too far, that we have given too many concessions, that we have been too generous with the people we have conquered. History does not show that. I think if we judge our policy by the success of British colonial government, by the success which has attended it, we must come to the conclusion that our Governments from time to time have acted with great wisdom. Now this policy so adopted and enforced has brought about some very curious and interesting results.
Come with me, for a few minutes, on a trip, in your imagination, around the British Empire. Leaving the Metropolis, we soon arrive at the Channel Islands. Here we find our possessions occupied by a people, nearly all of whom speak the Norman-French tongue, and who are all under laws and customs which are founded on the laws and customs of old Normandy. Passing, up the Irish Channel, we come to the Isle of Man. This possession has a system of laws peculiar to herself, and which cannot be said to be based upon any well-known system of law. Entering the Mediterranean, we soon arrive at the Island of Malta. Here there is scarcely a vestige of English law. It is Roman law, as modified by Italian law, and yet the people are well governed and satisfied. Later on we arrive at the Island of Cyprus which, as you know, is inhabited largely by Mohammedans and Greeks. The laws there in force are based upon the Mohammedan laws. In recent years the English Government has introduced a judicial system which calls for English barristers presiding over the Courts which administer to a large extent Mohammedan laws. Let us go through the Suez Canal, down the Red Sea, and in course of time we arrive at the Island of Ceylon. Here is an island which was occupied first by Portuguese; then by the Dutch, and lastly by our own people. The result is a mixture of the different systems of law. Leaving Ceylon we come to our great Indian Empire. What a great mixture of systems we find there! First of all there is the Mohammedan system, a very refined and technical system and one that is a great study in itself. Then there are a great many tribal customs that are peculiar to India which have often the force of law. Out of the great Hindu law founded upon the sacred books written in the Sanscrit tongue have grown schools and systems of law. While there is a code of fundamental civil laws in force in India, thanks to Lord Macaulay and those who worked with him, it is necessary to obtain a general knowledge of the laws of India to know the Mohammedan, and Hindu systems as well as the tribal customs.
We need not call at New Zealand or Australia, because they are more British than Britain herself. Let us go over to South Africa. Here, with the exception of Natal, which has the common law of England, the whole of united South Africa is under the Roman-Dutch law-a mixture. Leaving there, we arrive at the little Island of Mauritius, which we took from the French in 1810. This is our only colony in which the great Napoleonic code is in force. This Code came up for consideration in an appeal from the Island to the Judicial Committee of the Privy Council a few years ago. Passing to America, we come to the Island of Trinidad, where Spanish and English laws are in force. The rest of the British West Indies are under the common law of England. So also are Newfoundland and the whole of Canada, with the exception of Quebec, and in Quebec we have a curious mixture. We have not the Napoleonic code as such because we took over Quebec before Napoleon's day. The laws of Quebec seem rather to be based upon the laws and customs of old France before the Revolution--amended from time to time as the French came into contact with their English neighbours. Having now finished our journey, we may well ask ourselves the question how and by what authority, and by what means are these laws enforced? The answer at once is, by and through the local Courts of these various possessions. But there is one final Court of Appeal for the Empire, before which all these customs and laws and systems come up for review and consideration. And about that Court I should like to say a few words. It is the judicial Committee of the Privy Council
I am not going into the history of this Committee beyond saying that its jurisdiction is based upon the right that every subject has to lay his grievances at the foot of the Throne. In early days these grievances were few, and no doubt were considered by the King himself. In the course of time as our possessions grew, in area and population, these grievances grew in number. The King, instead of considering them himself, would refer them to his advisors, the Privy Council. Later on as a further development, when these grievances consisted of wrongs done them by unjust decisions in the local Courts, in other words appeals from the local Courts, they were referred by His Majesty not to the whole Privy Council, but to a judicial committee of the Privy Council. This Judicial Committee was re-created so to speak, by a statute passed in 1833. The number of the law-lords who may sit on the Committee vary, but as a general rule number nine or ten. Without the slightest doubt the members of this Judicial Committee are, as a rule, the greatest judicial minds that are to be found in Britain. The paid members of that Committee receive a salary if I remember rightly of five thousand pounds a year. The Lord Chancellor who presides over the Committee, and who is the only member of it who is a member of the British Cabinet, receives ten thousand pounds a year. It is not a Court which pronounces judgment. It is a Committee which reports to the King who acts upon the report. When next you are in London and have any spare time, it would be worth your while to go down and watch the proceedings of this Committee. They sit in an old building in Whitehall. After going up a flight of stairs, you arrive at a dingy old room with a lot of dingy old furniture, and there these law-lords sit around a table. There are always four or more of them-there must at least be four. The chair at the end of the table is not occupied. The reason is said to be (I cannot vouch for this) that it is kept for His Majesty, the King, in case he should ever want to bother himself with the details of a lawsuit, something he has never done yet, and something which he is not likely to do.
If you are there long enough you will hear some very interesting cases. It may be that you will hear a dispute between two Indian Rajahs over some Indian estate. If you had been there a few years ago and dropped it at the right moment you would have heard a dispute between two highly-born Indian families, over the right to paint their favourite idol's nose during a festival.
These things may seem very strange to us, but they are very important to our Indian fellow subjects. Now I might also say that in India this judicial Committee is very much respected and is held in reverence by many people. I was reading not long ago, an anecdote, said to be founded upon fact, that a traveller in the interior of India came upon a number of natives who were offering up sacrifices to an unknown God. On inquiry he found that the natives did not know much about this God. All they knew was his name, which was the judicial Committee of the Privy Council. It seems that the natives there had had some difficulty with an Indian prince, who was exercising some unjust authority over them, and they appealed to their own local Court without success. They carried their grievances to the Judicial Committee and there they had them remedied. They were offering up sacrifice to this unknown something, which they thought must be a God because it accomplished so much for them. You might also hear at the Committee a dispute between two proprietors of a Tea Plantation in Ceylon, or over some diamond properties in the Transvaal, possibly (who one can tell') you may be there when there is a dispute between Toronto and her Street Railway Company. No one watching the proceedings of this Committee can fail to be impressed with the greatness and grandeur of our British Empire. It is undoubtedly true that the jurisdiction of the judicial Committee is more extensive, whether judged by population, area, variety of nations, languages, creeds, laws or customs, than has hitherto been enjoyed by any Court known to Christendom.
I would point out that this judicial Committee has a political significance as well. If we were to ask ourselves, "What is the great -tie which binds us together in one common Empire?" our answer would probably be that unseen something which we call sentiment. But in addition to that tie of sentiment there are certain other ties we may -term "legal ties." One is this, that our Governor-General, without whose sanction or approval no Act of Parliament can become law here, is appointed by His Majesty, the King, on the recommendation of his Government. Another is, that the legal power undoubtedly rests with the Imperial Parliament, if they want to exercise it, of passing laws having binding force in all His Majesty's Dominions. There is a third, this very judicial Committee of the Privy Council. I know there are people who would like to do away with it, and they advance reasons which I think are not valid ones. We may take two or three of them. First, they say that we ought not to carry our appeals there because it is a reflection upon our own country and our own Courts and Judges. They say if shows that we are not able to settle our own law-suits. I think there is very little in that. We ought to be broad enough in this country to be willing and anxious that our disputes should be submitted to the very highest judicial authority that can be obtained, whether in London, Montreal, Toronto, or anywhere else. It is a well-known fact that the greatest talent that you can find in any profession, or in any walk of life, somehow gravitate to the great centres of population, and so we naturally expect to find, and do find, in the centre of the Empire the very best and strongest judicial minds in the world.
Then it is said that our decisions ought to be rendered in an atmosphere of home where local opinion is known, etc. Well now, gentlemen, it seems to me that is a very vile doctrine. If our legal rights are to be based upon or influenced by public opinion, we may just as well do away with Courts and judges altogether, and have our legal decisions given by City Councils, Legislatures and Parliaments. A man may be right though all the world be against him, and our Courts exist to establish him in that right. So that I think there is nothing in that objection.
Then it is said that the judicial Committee is no stronger than our own highest Courts. Well, that all depends. How are we to decide that question? If we have an intricate medical case upon which we want to obtain the best opinion, we go to the man who has the highest standing in that profession. Although he may be wrong it is the best opinion we can get. We are guided not only in law, but in everything else, by the weight of authority. There is no complicated law-suit in which any man can say, beyond doubt, that this decision is right or that decision is wrong. It is the weight of judicial opinion behind it that gives satisfaction and finality, and it is very generally regarded as a fact that the opinion of the judicial Committee of the Privy Council, is the opinion of a Committee composed of men of higher standing in their profession and greater legal attainments than any that can be obtained in any of the Dominions of the Empire.
Allow me to say this in conclusion, that I have some sympathy, not very much, but some, with that class of people who, when they do think Imperially, are always thinking about building a Canadian Navy or contributing to Imperial Dreadnoughts. Their dreams by night are of foreign invasion, and their thoughts by day are about wars and rumours of wars. These things of course are not to be underestimated. I suppose that in national life, as well as in private life, we must always be upon our guard, but let me say this in parting, that if we should happen to have any time left after we get through thinking of Canadian Navies and Dreadnoughts, I should like to see our attention directed to some of those silent, powerful forces that are always at work in the upbuilding and strengthening of Empire. This Judicial Committee of the Privy Council is one of these forces, and that is one reason for continuing it. I do not feel qualified nor do I venture to offer any advice upon the subject, but if I may be allowed to express my own private opinion it is this that so long as we remain part of the British Empire, though we may improve upon the personnel of this Committee from time to time, though we may strengthen it, let us keep it, guard it, cling to it, never let it go.