THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL.
An address by MR. J. M. CLARK, M.A., LL.B., K.C., before the Empire Club of Canada, on March 1st, 1909.
Mr. President and Gentlemen,
Canadians have cordially joined in the celebrations of the centenary of the birth of Abraham Lincoln, one of the truly great men of the nineteenth century. How far from attaining his noble ideals of justice and liberty have been the people of the United States is sufficiently indicated by recalling the significant fact that, only a short time ago, innocent men, instead of being permitted to enjoy life, liberty and the pursuit of happiness, were cruelly lynched in Lincoln's own town. Observers have frequently remarked on the notable contrast between the administration of justice in the mining camps of Canada, and the lawlessness and uncertainty of life manifest in similar districts in the United States. These are not merely isolated instances, but symptoms of fundamental differences:
So marked indeed is the contrast between the administration of justice under British institutions and that under the United States system that President Taft recently stated that " the administration of the criminal law in all the States of the Union is a disgrace to our civilization."
In his address of the 8th December last, President Roosevelt said, " It is discreditable to us as a nation that there should be difficulty in convicting murderers."
My object is not to criticise the institutions of- the United States. Many features of their constitution could be studied, and some of them copied in this country, with benefit to Canada. But I desire to point out an advantage which is frankly conceded by thoughtful observers from the United States, and to urge that strenuous efforts should be put forth to maintain the advantage which the British system of the administration of justice gives us, especially as it is clearly a prime factor in making emigrants from the United States loyal Canadians and patriotic British subjects.
The difference to which I have alluded is not accidental, but part of the far-reaching consequences of causes which it is possible to ascertain.
Some, though not all, of the founders of the United States Republic were led away by the superficial philosophy which became current about the middle of the eighteenth century. That resulted, in France, in a terrible tyranny exercised in the name of liberty and culminating in a military despotism; in an equality, not the noble British ideal of equality before the law, but the equality of exposure to violence and injustice; in a fraternity which practically meant the fraternising possible in the tumbrils en route to the gulliotine. Misled by vague words which did not connote realities, the people of the United States violently broke the course of the orderly development of British justice and liberty, broadening down from precedent to precedent. The development of which Dr. Broom justly says, "no weightier story can elsewhere be read, nor has any passage yet been gathered from the annals of the world yielding for the cultured intellect, a nobler lesson."
The right of personal liberty, private property, and freedom of speech were secured. In England, as Tennyson well says, " a man may speak the thing he will." But the crowning glory of the British system is that. men are ruled by law, not by caprice.
It has indeed been said that the distinguishing characteristic of British institutions is the rule, supremacy or predominance of law. .
In an interesting article in the January number of the Quarterly Review, p. 302, Prof. A. V. Dicey, the latest successor of Blackstone at Oxford, says: " We inherit institutions built up by generations of statesmen and well worth defence. Our constitution, resting as it does on the unquestionable supremacy of the civil power and the universal rule of equal law, is, with all its defects, the strongest, the freest, the most pacific-we may venture to say the most humane-form of government which has ever existed in any great State or Empire." We are apt to take what Prof. Dicey calls the universal rule of equal law as a matter of course, but it is the result of a long struggle, and can only be maintained by constant vigilance and effort. The forces which make for lawlessness in the United States are making themselves felt on this side of the boundary, and we must not take it for granted that true liberty founded on law will be continued unless the struggle is also continued.
In evolution it is said that there is always a danger of reversion to inferior types. So in matters of government there is constant danger of the usurpation of arbitrary power. Among us this is manifested largely in the expression of a desire to have matters of property and right determined according to the methods of barbarous chiefs, who tried accused persons summarily without regard to rules of evidence or technicalities of procedure, and without any expense of appeals. So that, according to current views, Mr. Hampden should have been snuffed out by the remark that the amount demanded of him as a ship-money institution did not justify the expense of the legal proceedings he occasioned, and that the costs were out of proportion to the 20s. involved.
Mill (in " Representative Government," p. q.,) says
"Political institutions (however the proposition may be at times ignored) are the work of men, and owe their origin and their whole existence to human will. Men did not wake up on a summer morning and find them sprung up, nor do they resemble trees which, once planted, are 'aye growing-' while men are sleeping. In every stage of their existence they are made what they are by human voluntary agency."
During the reign of Victoria the Good, Rudyard Kipling foresaw the threatened danger of the tyranny of socialism and uttered a strong warning against the despotism of arbitrary power. In his poem on the "Old Issue," he said:
" All we have of freedom, all we use or know, This our fathers bought for us, long and long ago. "Ancient right unnoticed as the breath we draw, Leave to live by no man's leave, underneath the law. "Lance and torch and tumult, steel and grey goose wing, Wrenched it inch and all and all slowly from the King. "So they bought us freedom, not at little cost, Wherefore we must watch the King, lest our gain be lost. " "How so great their clamor, whatso'er their claim, Suffer not the old King under any name. "Here is naught unproven, here is naught to learn, It is written what shall follow if the King return. " He shall mark our goings, question whence we came, Set his guards about us as in freedom's name. "He shall break his judges if they cross his word, He shall rule above the law, calling on the Lord. " He shall peep and mutter; and the night shall bring Watchers 'neath our window lest we mock the King. "Strangers of his council, hirelings of his pay, These shall deal our justice, sell-deny-delay. "Cruel in the shadow, crafty in the sun, Far beyond his borders shall his teaching run. "Sloven, sullen, savage, secret, uncontrolled, Laying on a new land evil of the old. "Long forgotten bondage dwarfing heart and brain, All our fathers died to loose he shall bind again. "All the right they promised, all the wrong they bring, Stewards of the judgment, suffer not this King."
One of the crowning features of the British system under which we in Canada live is the final authority in matters of law of the judicial Committee of the Privy Council, or, to speak more accurately, of the King speaking on the advice of the judicial Committee of the Privy Council. According to Blackstone, under the British constitution the King is the fountain of justice and general conservator of the peace of the Empire. By the fountain of justice the law does not mean the author or original, but only the distributor. Justice is not derived from the King as from his free gift, but he is the steward of the public to dispense it to him to whom it is due. Blackstone quotes Bracton for the proposition that for this very purpose was the King created and elected, in order that he might render justice to all. Ad hoc autem creatus et electus ut justitiam faciat universis.
In the early days of arbitrary power monarchs sometimes decided cases personally, but it has long been settled that justice must be distributed through the regular courts. The last attempt to evade this salutary rule was that of James I., in the celebrated case of Evocation, when Coke stoutly replied to the monarch that he could only in such matters speak through his courts (per curiam), observing that the law was the golden metwand and measure to try the causes of subjects. In the following reign of Charles I. (in 1604) it was enacted that all questions of property, etc., " ought to be tried and determined in the ordinary courts of justice and by the ordinary courts of law."
Time would not permit to trace out the very interesting history of the jurisdiction of the judicial Committee of the Privy Council. It must suffice to say that it was established in its present form in 1833 by an Act introduced by Brougham, one of the greatest of law reformers. This Act has been from time to time amended. The only one of these amendments on which we need comment is that passed in 1895, authorizing the addition of five members of the judicial Committee from Canada, Australia and South Africa, and other parts of the British Dominions. These five must be, or have been, judges of certain specified Canadian, Australian or South African courts, or of some other superior court in His Majesty's dominions, to be named by competent authority, and must be members of the Imperial Privy Council.
The judicial, Committee is to be distinguished from the House of ords-and by the House of Lords I mean the judicial body, not the legislative body of whose membership we have been able to judge in Toronto by such men as Morley and Milner. The judicial body known as the House of Lords is composed largely of the same judges as sit in the judicial Committee of the Privy Council, and has a jurisdiction defined by an Imperial Act passed in 1876. While the judges are largely the same, there are some important distinctions between the two tribunals. In cases argued before the judicial Committee of the Privy Council, while the cases are really decided by the judges who hear the argument, the order is the order of the King in Privy Council on their advice. Some important consequences follow from this. The Privy Council advises the Crown, and in doing so it is bound not to record dissentient opinion. This was provided for in 1627, and the prohibition was reaffirmed in 1878. Only one set of reasons for judgment is given. One of the greatest living authorities on jurisprudence, Sir Frederick Pollock, states as the criteria of just laws in a civilized community, " generality, equality, and certainty;" and the rule which prevails in the Privy Council, it is obvious, tends greatly to promote all these, and especially the desirable quality of certainty. The House of Lords is bound by its own decisions in accordance with the rule laid down by Blackstone, that the duty of the judge is to abide by former precedents. This rule is not binding on the judicial Committee of the Privy Council, which must decide in each instance according to the very right and justice of the particular case before it.
At present it is undeniable that there is among us a certain degree of superficial public clamour against appeals to the judicial Committee of the Privy Council, but a short reference to our history will, I think, be sufficient to show how unjustified such clamour is. As you all know, before Confederation there was a sort of partnership between Ontario and Quebec, which constituted the old Province of Canada. The Confederation Act provided that the questions arising out of the division and adjustments of the debts, credits, liabilities, properties, and assets of Upper Canada and Lower Canada should be referred to the arbitrament of three arbitrators, one chosen by the Government of Ontario, one by the Government of Quebec, and one by the Government of Canada. After the arbitration so provided for had proceeded a certain distance, the Quebec representative claimed that the views of the Dominion arbitrator were unduly favourable to the Province of Ontario, and refused to continue to attend the proceedings or to join in the award. Considering the consequent ill-feelings that might have been aroused by such a controversy, it was extremely fortunate that there was such a tribunal as the judicial Committee of the Privy Council to whom the dispute could be referred.
It was so referred, and it is interesting to know that one of the counsel for the Province of Quebec was Mr. J. P. Benjamin, who had been Secretary of State in the Confederacy during the Civil War in the United States. Notwithstanding a very able argument by Mr. Benjamin, discussing exhaustively the basic principles of arbitration, the Privy Council decided in favour of the validity of the award. The Lord Chancellor who presided at the time was Lord Cairns, and it is worth), of note that Mr. Benjamin has put himself on record that, although he knew well the great judges of the United States and of Europe, as well as those of Britain, he considered Lord Cairns as the greatest judge before whom he had ever pleaded.
Then the older among us can recollect the tremendous excitement caused by the boundary dispute between the Province of Ontario on the one hand, and the Dominion of Canada on the other, to which the Province of Manitoba became a party. The feelings aroused by that dispute were very angry ones. There was an attempt at local arbitration, but the award of the Canadian arbitrators was repudiated. It was again fortunate that there was such a body as the judicial Committee of the Privy Council to whom the dispute could be referred a unique tribunal, weighty and authoritative, composed of eminent judges in whose ability, learning, unsuspected impartiality, and freedom from local proclivities the people of this country had, and continue to have, the utmost confidence. The whole matter was decided by the judicial Committee of the Privy Council; and it is curious to note that the ultimate decision was based upon the fact that what is now the Province of Ontario was formerly included in what was formerly Quebec.
Ontario in that case relied upon the French title, the Dominion relying largely upon the title of the Hudson Bay Company. The fact that our title to the rich lands of the disputed territory is traced through the French title which was transferred to Great Britain suggests at once the fact that Ontario is now enjoying the benefits of the British blood and treasure so freely expended under the inspiration of the magnificent Imperial conception of Chatham.
The taxpayers of England, Scotland and Ireland are paying the principal and interest of the consideration for the lands which we in Ontario are now enjoying. The title is still in the Crown, which is one and indivisible throughout the British Empire; but the administration of these vast assets, notwithstanding the fact that the taxpayers of the Mother Country are paying the consideration, has been handed over to the people of this province. This was in accordance with the wise and statesmanlike policy recommended by Lord Durham; but the bald recital of the facts shows that the people of Ontario hold these lands not merely for our own gratification, not merely for the benefit of the Dominion of Canada, but, above all, in trust for the whole British Empire.
We may apply to ourselves the eloquent words used by Lord Roberts in his famous speech
" We are links in a living chain, pledged to transmit intact to posterity the glorious heritage we have received from those who have gone before."
The decision of the Privy Council, though accepted by the Dominion, did not end the dispute. The Dominion set up that while -the territory in dispute had been decided to be within the boundaries of Ontario, yet that the title to the lands had been transferred to the Dominion by the Indians. This involved the whole question of the Indian title, and the relations between the Crown and the Indians. It was shown, in that case, that the British authorities had always dealt justly with the Indians; and, while they did not permit the Indians to sell or transfer their interests to outsiders, they never dealt with lands claimed by the Indians until such lands were surrendered by the Indians by a formal contract, duly ratified in a meeting of their chiefs or headmen convened for the purpose. The decision declared, as we all know, that the lands belonged to Ontario by virtue of the British North America Act; but that, seeing that the benefit of the Indian surrender accrues to her, Ontario was directed to relieve the Crown and the Dominion of all obligations involving the payment of money which were undertaken by the treaty. The question of the liability of Ontario in this respect is at present in process of adjustment.'
Another very interesting question in regard to the relations with the Indians, called "The Indian Annuity Case," was settled by the Privy Council. In the Treaty of 1851, made at Sault Ste. Marie, the Indians were promised increases of their annuities if the lands surrendered produced funds sufficient for that purpose. At Confederation the Dominion, subject to certain provisions, assumed all the liabilities of the old Province of Canada, of which this was one; but contended that Ontario, having received the increased proceeds from the lands, must provide the funds to pay the increased annuities to the Indians. The arbitrators before whom the matter came decided that Ontario, having received the benefit of the increased proceeds from the lands, must bear the burden of the increased payments to the Indians; but the Privy Council decided that the Confederation Act might be regarded as a compact, and that the highest equity was to observe the terms of the bargain under which these increased annuities were liabilities to be paid by the Dominion.
Another notable case between the Ontario and the Dominion was the famous Mercer Case, in which the Privy Council decided that the right of escheat belonged not to the Dominion, but to the province, under the term " Royalties " in Section 109 of the British North America Act. This apparently simple decision involved consequences of far-reaching importance, as was shown subsequently in what is known as the Precious Metal Case-a dispute between the Province of British Columbia and the Dominion of Canada, where the Royal Mines were held to belong to the province.
The Privy Council have decided many important questions, not only such as those I have referred to, dealing with questions of boundaries, assets and liabilities, but also even more important questions of legislative jurisdiction and executive power. These cases dealt with such matters as insurance contracts, liquor and other licenses, powers of taxation, legislative power over property and civil rights, and the status of the Lieutenant-Governor, who, it has been decided, represents not the Governor-General who appoints him, but the Crown, for provincial purposes. Another very interesting case dealt with the property and legislative rights of the federal and provincial authorities in regard to fisheries, and the beds of navigable and other waters. Many other constitutional problems quite as difficult and important as any that have been settled remain to be solved.
It is worthy of note that during the discussion of the bill to establish the Supreme Court of Canada it was Sir John A. Macdonald who contended for the right of appeal to the judicial Committee of the Privy Council. This bill is popularly associated with the name of that great advocate, the Hon. Edward Blake, but the records show that it was introduced by Hon. Mr. Fournier. Mr. Blake's connection with the bill was that by a series of very able state papers he persuaded the Imperial authorities not to veto the bill, as at first they were inclined to advise the Crown to do.
It is worthy of remark that the honoured dean of the legal profession in this province--Sir. Aemilius Irving--took an important part in the discussion of this bill, and also in the solution of most of the constitutional problems to which I have referred. His great services, which have resulted in benefits and savings to the province amounting to many hundreds of thousands of dollars, in addition to the other results achieved, have been fittingly recognized by the King. Before this digression, which I am sure you will pardon, I was proceeding to point out what is too Well known to require argument, namely, that the earlier decisions of our Supreme Court would have rendered our constitution quite unworkable. In saying this I do not overlook the great services to Canada rendered by the Supreme Court of Canada. The Supreme Court of the United States has also done great work for that country, but on several occasions it would have been of great advantage to the United States if there had been such a body as the Judicial Committee of the Privy Council, to whose impartial decision various disputes might have been referred.
I quite agree that our Supreme Court should be strengthened. The salaries of the judges should be a greater fraction than they are of those given to the directing heads of our great financial, transportation and business institutions. I would say that the salaries of our Supreme Court judges should at least be doubled. Without discussing the matter in detail, it can be cited as an historical fact that, as the result of a series of appeals to the Privy Council, our present system was established. Some, including the late Sir John A. Macdonald and Mr. Christopher Robinson, thought the Privy Council had gone too far in the direction of extending provincial jurisdiction; and it is noteworthy that their views have been largely adopted in the new draft constitution of South Africa, which has recently been submitted for consideration to the present South African legislatures. The draft Act of Union recommended by the South African National Convention provides that "there shall be no appeal from the Supreme Court of South Africa, or any division thereof, to the King in Council, but nothing herein contained shall be construed to impair any right which the King in Council may be pleased to exercise to grant special leave to appeal from the appellate division to the King in Council. Parliament may make laws limiting the matters in respect of which such special leave may be asked, but bills containing any such limitation shall be reserved by the Governor-General for the signification of His Majesty's pleasure."
That member of the Privy Council who perhaps took more part than any other in the solution of the difficult problems submitted from Canada is described by the Right Honourable Mr. Haldane in II juridical Review, 1899, page 281, where, referring to Lord Watson, he, says, "with him law and justice turned out in the end to be invariably the same thing. He was a great servant of the Empire. He did much to make stronger one of the real links which binds and unites its parts. Not many of those who talk glibly about Imperial Federation took the trouble to turn into the shabby doorway at the Whitehall end of Downing Street, and go up the worn lead-covered stair, through the faded curtains, into the plainly furnished room where the supreme tribunal of the Empire sits. Had they gone there any time during the last fifteen years they would have beheld at his best one of the greatest lawyers that ever sat upon the British Bench, devoting his splendid powers to the spread throughout that Empire of faith in the justice of the Queen."
In the debate on the Commonwealth of Australia Constitution Bill in the Imperial Parliament, in 1900, Mr. Haldane advocated a great Imperial Court of Appeal to take the place of the House of Lords and the Privy Council. He argued that "there is a body of common traditions, common doctrines, common tendencies, just as there is a body of common law, which is the general heritage of our Empire;" and, further on, said: " I feel that it is almost inherent in a constitution such as ours, shared by different parts of the Queen's Dominions, preserving the common elements to which I have referred, that there should be some means of a common interpretation. I feel that there is implied in our constitution, when it reaches a certain stage of development, that there should be a common tribunal which would be a real link, because it would be the property, not of one part of the Queen's Dominions nor of the people in them, but of the people throughout the Empire."
While I regard it as certain that the time will come when this magnificent ideal will be realized, I think there are other matters of Imperial organization and co-operation of more immediate and pressing importance and necessity.
If time permitted, it could be shown that the Privy Council had rendered signal service to our jurisprudence, of which I shall only give one very, recent instance. The controversy between the coal and steel companies has aroused widespread interest. The judgment appealed from, granting specific performance, would have necessarily involved the superintendence of a coal mine by the courts for a period of ninety-nine years, and the maintenance of that judgment would, I think, have created a very mischievous precedent. Examples could be multiplied to show the fallacy of the argument that, even if we abolished appeals to the Privy Council, the decisions of that tribunal would still, to a certain extent, guide our courts, not by reason of Imperial power, but by the Imperial power of reason.
I would not presume to appear as in any way defending the judicial Committee of the Privy Council, but it is worth while to notice that much of the local newspaper criticism is founded on a complete misapprehension of the facts. Take the King case, about which there was much comment. If anyone cared to look up the facts it would be found that what took place there was that the courts in Canada granted the defendant company a new trial. The case came before the Privy Council, and what the Privy Council did was to give leave to the plaintiff to cross appeal, and then there give a final decision that substantial justice had been done, and that the company, having had their day, to use the ancient legal phrase, the verdict of the jury should be enforced without any further trial or delay, and that the company should pay all costs.
Then we have the case of our Toronto Street Railway. Of course, in every litigation one of the two parties must be defeated. In that case, after the agreement had been made between the City and the Railway
The Judicial Committee o f the Privy Council 166
Company, an Act was passed by the Ontario Legislature. If the object had been simply to confirm the agreement, and avoid any difficulties owing to informalities or irregularities, then the simplest principles of draftsmanship would have prevented any difficulty. The subject of the law would have been the agreement, and the only predicate necessary would have been supplied by the words " ratify and confirm." Instead of this, an Act dealing with the agreement was passed by the Legislature. The Privy Council gave effect to that statute as expressing the sovereign will of the people. The statute was a clear violation of sound principles of legislation. Mr. Justice Gwynne long ago pointed out that retroactive legislation interfering with contracts was inconsistent with true liberty. Such a power, of legislation, it may be remarked by the way, though claimed, like all vicious legislation, to be in the interests of the people, will, in the nature of all things, almost invariably be against the public interest, and for the benefit of some skilful promoter or manipulator. The true conclusion from what has taken place is, therefore, not that there is any justification for an attack upon the jurisdiction of the Privy Council, but that sound principles of legislation should be observed.
Then it may be asked: Should there not be Law Reform? I say, certainly; but one of our ablest judges has shown that the term Law Reform, as currently used, is a complete misnomer. Shakespeare classed the law's delay with the insolence of office among the ills we know, etc., and prefer to those we know not of. And in the days of Queen Elizabeth, Parliament passed a statute-8 Elizabeth, c. 5 (1565)-for the avoiding, as well of long and tedious suits as also of great charges and expenses in prosecuting them, and enacted that all litigants should have such expedition in their suits as their nature and qualities do require; but that this injunction is obeyed, as far as the Privy Council is concerned, may be sufficiently indicated by the fact that before the Lord Chancellor left for his vacation last summer all arrears of work were disposed of by the Judicial Committee of the Privy Council, and by the way he spent his holiday in Canada, performing the notable feat of escaping newspaper interviews, Empire and Canadian Clubs.
In the future, as in the past, modifications in the law will become necessary to meet the exigencies of modern life and modern progress. At present the most urgent matter is to remedy the loose and irregular methods in which is manifested what Mr. Bryce, the British Ambassador at Washington, has designated the mania for legislation.
As every practitioner knows, many of the difficulties arising in litigation are from the faulty draughting of statutes. To take one example, Mr. Justice Osler says (re Lennox, 6 Ontario Law Reports, 233), referring to certain Acts which it was the duty of the Court to construe, " I do not think that much light is thrown upon their construction as we now find them, though by a scrutiny of the previous legislation, much of which is of an extremely disjointed, inconsecutive character, abounding, as indeed do the present Acts, in verbal practical inconsistencies."
In Great Britain, where the Imperial Parliament has had an experience of over 600 years in such matters, the difficulty is met by employing a highly skilled draftsman with a competent staff. A notable measure of law reform would be the adoption of a similar system here. The multifarious duties imposed on Cabinet Ministers here, as 'in Great Britain, render it necessary that they should be relieved of such details, which should be performed by highly trained and specially qualified men. The present system of judicature is founded on the great law reform conceived by the genius of Lord Cairns, and completed by his illustrious successor, Lord Selborne. It was introduced into this province by Sir Oliver Mowat, greatly assisted by the scrutiny and keen criticism of Mr. Matthew Crooks Cameron, both great lawyers.
Since I promised to, prepare this paper two able addresses have been published in The Canadian Law Times dealing with the same subject; one by the Hon. Wallace Nesbitt, K.C., and the other by Mr. J. T. Small, K.C., both showing considerable research. Mr. Small has demonstrated that our whole system has worked so satisfactorily that in three years there were only six appeals from our Court of Appeal to the Privy Council, or in the proportion of only one case in five hundred tried.
The first Act of the first Parliament of Upper Canada, which met. at Niagara in 1792, replaced the laws of Canada, as the French system was called, by the laws of England, thereby introducing into this province the gladsome light of British jurisprudence. The same Parliament provided for appeals to the Privy Council, and what has been well called the sacred right of appeal has ever since been carefully guarded.
The system existing at Confederation was continued until changed by competent authority. I shall not discuss the legal effect of the local legislation I have referred to, further than to point out that it furnishes a complete answer to those who say that the jurisdiction of the judicial Committee, of which there are two Canadian members, has interfered with local self-government, but would say that it shows the right of appeal to the Privy Council has always been regarded as important, and, indeed, as the birthright of British subjects. It is also regarded as an important security and safeguard by British foreign investors. Nor shall I discuss the bill which has been introduced into the local Legislature, but would conclude by saying that we should not too hastily strike at what we have the best authority for designating one of the best links by which we can maintain the unity of the Empire.