The Press. THURSDAY, JANUARY 24. 1895. THE PRIVY COUNCIL.

Press, Volume LVII, Issue 9010, 24 January 1895, Page 4

The Press. THURSDAY, JANUARY 24. 1895. THE PRIVY COUNCIL.

Some little attention has recently been drawn in London to the desirability of appointing colonials Judges -to the Judicial Committee of the Privy Council. We. presume that most 'of our readers are that this Committee is tbe ultimate Court of Appeal for the colonies, -while for English, Scotch aud Irish, cases the ultimate Court of Appeal is the House of Lords. It is characteristic of our race that these Courts are both in. substance utterly different from what they are hi form. The appeal to the" Privy Counoil is nominally an appeal. to her Majesty the Queen. But inasmuch .as her Majesty, however . great her attainments and capacity, has neither the time nor the knowledge to deal with legal questions, the appeal is heard before a Committee of the Privy Counoil, who. are. specially appointed for the purpose and handsomely paid for the. duties c they perform. Hence the Privy Council do not really pronounce judgment They merely say what they intend to advise her Majesty to decide, and, like a good Constitutional Queen, she invariably actß upon their advice. The House of Lords again/ which decides British appeals, is not the political body the extinction of which is the favourite -object of the Radical, party* lb is in fact, though not'in form, merely a Committee of that House, consisting of the Peers who have been or are Judges. The lay Peers never take any part in the deliberations or votes of the i House of Lords when sitting as a Court of Appeal. But still in form the ultimate Court of Appeal for British cases is the political body. Judgments are given by motion add votes taken of the Law Lords present just as if the ; matter in hand were a Bill. The judgments pronounced are speeches addressed to the House of Lords in favour, of or against the motion for allowance or. dismissal of the appeal. The Judicial Committee of the Privy Council, the constitution of which is provided for by Act of Parliament, contains Indian judges, but no colonial judges have ever jet been appointed. This Court of Appeal was at first; established mainly. for Indian cases, as. in its earlier years colonial appeals were but few, owing, to the smallness of the population of the colonies, the time occupied in communication with them, and other causes which may be easily conceived and have now ceased to operate. Things have greatly changed in this respect, and the cases from the -various colonies now occupy- a very great deal of the time of the, Privy Coun-; cil, and. it _ is often much in' arrear with its work. Unless, therefore, some change is made in its constitution, a considerable amount of! dissatisfaction in tbe colonies w bound to arise, and possibly as an alternative an Independent Supreme Court may be established in" each; of the great group* of colonies.. It ia important to bear in mind the great divergence in the systems of law in these three great groups, the Canadian, the South African, aud the Australasian. The legal t>y»tem of Cauada had much trace ol French-law iv iiw rTU.-flommoii-

law of South Africa is Roman Dutch. Ia Australasia the land laws and other laws of necessity differ widely from those of Great Britain. As an English , writer puts it, " The cause "of the actual difference iv the laws *« lies deep in the differing customs «« upon which they have been based. "The French Canadian, the Anglo " Dutch, the purely British population of the groups of colonies vary "greatly iv traditions, habits of "thought and social characteristics. " A verbal knowledge of the letter of "any given body of law is admittedly " insufficient for its correct interpre- " tation. Acquaintance with the surroundings oi: life and circumstance "out of which the laws have sprung "is in many cases essential to ■•' a fine balance of judgment. "In colonial appeals the Judges " who comprise the Judicial Com- : " mittee of the Privy CounoiL " have not only given their decision •'upon points of law with which they "are necessarily unfamiliar in prac- " tice, they have also to arrive at these " difficult decisions without any of the "assistance which comes from extra- " legal knowledge of the couditions. "Their judgment is subject to the "criticism of keen colonial lawyers, all " possessed of the particular kjiow"ledge in which they are themselves ** deficient. It is not surprising that " they should make mistakes." The difficulty should; be met therefore by the appointment of an Australian, a Canadian and a South African Judge. No doubt if Australasian Federation should ever be brought about, or when ie is brought) about, there may be a Federal Court of Appeal which will relieve the Privy Council of much Australian, work by giving decisions which may command sufficient respect |to prevent many litigants from pursuing their litigation further. The weak part in all our colonial Courts of Appeal at present is that they are all composed of judges who also sit in the Courts of first instance. The natural result of this is that, perhaps insensibly to the Judges themselves, their decisions are somewhat governed by considerations for appeals against their own judgments •iv other cases. If Judges A, B, C and D sit on au appeal from Judge E, each of them knows that Judge E in his turn will sit in judgment on a case on appeal from them, and this makes them lean to meroy on Judge £ in the hopes of getting meroy from him in their turn. For it is a sore mortification to a Judge to be overruled. A Court of Appeal ought to be composed of Judges who never do anything but sit in appeal cases. It is noticeable* even in our own Court of Appeal that there is a tendency to uphold judgments if the amount at stake is not large, and it is pretty oertain that the case will not be taken to the Privy Council. New Zealand cannot, however, at present afford the luxury of a Court of Appeal consisting of Judged oi, Appeal only, though it is open to argument whether it might not be cheaper in the long run to have three Judges of Appeal going on circuit, and thus, bringing the Appeal' Court to the door of the litigants. New 1 Zealand is not likely to enter the Australasian Federation, aud, therefore, could' nbt avail herself of a Federal Court of Appeal. Reformation of the Privy" Council in the direction indicated is, therefore, a matter of interest to this colony, and it is to be hoped that something may 'be dpne to strengthen the Privy Council by an infusion of the colonial element.