The Dominion THURSDAY, NOVEMBER 28, 1929. THE LAW AND THE EMPIRE

Dominion, Volume 23, Issue 55, 28 November 1929, Page 10

The Dominion THURSDAY, NOVEMBER 28, 1929. THE LAW AND THE EMPIRE

An important constitutional point has been raised by the Irish Free State threat to pass legislation to prevent the operation of Privy Council decisions in Southern Ireland. This, in the opinion of certain leading members of the British House of Commons, would amount to a breach of the Free State Constitution Act, which is very clear on the point. Article 66 declares that “the decision of the Supreme Court shall in all cases be final and conclusive, and shall not be capable of being reviewed by any other Court, Tribunal, or Authority whatsoever.” But there is this important reservation:

“Provided that nothing in this Constitution shall impair the right of anv person to petition His Majesty for special leave to appeal from the Supreme Court to His Majesty-in-Council, or the right of His Majesty to grant such leave.”

From this proviso it may be argued by some that the populace of the Free State are subjects of the King. If they are not, as others may argue, then they must be outside the category of “persons” who may petition His Majesty for redress. As a matter of fact the position is somewhat contradictory. One commentator remarked of it that it furnishes a peculiar example of political expediency in which the right hand is unaware of what the left is doing.

This difficulty with Southern Ireland in the matter of Privy Council appeals had a trifling origin—a dispute over a question of copyright—but it has developed by degrees into a broad Imperial question, involving possibly the necessity for defining the judicial responsibilities of the self-governing Dominions. On this point the late Lord Haldane was of the opinion that it would not be expedient to define principles too rigidly. “In the olden days,” he pointed out, “the appeal to the House of Lords was as of right, but the appeal to the Privy Council is not as of right. It is an appeal "'to the King’s discretion, and it is founded on a petition that he should exercise his discretion.”

From this it follows clearly that the King in his discretion may decide not to interfere with the judgment of the highest court of an overseas Dominion, and decline to allow the appeal to go forward for hearing. As a matter of expediency such an attitude might develop into a settled policy. But would this be in the best interests of British law throughout the Empire? One would hardly think so. On this point Mr. I. George Kelly, in the February Nineteenth Century and After is worth quoting:

“The English Common Law, the only system which the world has known worthy to stand beside the Roman, is,” he says, “an inheritance entitled to preservation for its own sake, but much more on the ground that it is the law common to the greater part of an Empire. The principles which we have built up around such subjects as negligence, trusteeship, aud the rules of evidence are worth keeping pure, even when they dwell in another hemisphere than ours.”

While the self-governing Dominions must of necessity make their laws to suit their circumstances, there are, as Mr. Kelly suggests, certain ruling principles in English law which ought to be capable of a recognised Imperial standardisation. When we speak of a united Empire we refer, one must suppose, to the fact that on certain broad principles of thought and action, there is an Imperial unanimity of sentiment, Unity of law, from this point of view, should be an important and very valuable consideration.