EMPIRE LAW

Evening Post, Volume CIV, Issue 37, 12 August 1927, Page 3

EMPIRE LAW

HOW UNITY IS SECURED

WORK OF THE PKIVY COWCIIi

In a recent Rhodes lecture at University College, London, Professor Morgan, according to the report in the "Solicitors': Journal," spoke of the unity of law within the Empire. For this unity he gave credit to the Privy Council.

Lord Dunedin, in introducing the le<* turer, said that the man in the-street had a good deal of misapprehension of the judicial committee of the Privy Council He confused it with the Privy Council - The Pnvy Council had 345 members, whereel the judicial committee consisted of IX 54, and of those 54 practically the whole it 1 ,? w" summoued to do the work, fo? 22 yea^ * memW °f the «*»«*««* ieSv° V- io '&an said that in one sphere being a woman, , one were j Nair on, -if indfr 6 tHe °f »«V hShaSS —v, indeed, one was a wife at all, for-in Malabar ancient usage was dying hard As with marriage, so with divorce If one was a member of a domiciled J^wkli S» » Egj-pt and had obtineTa ctivorce m a Court of Rabbis, the- Privy Council would-or until lately wouldaw—as much as in those days of Sip So™ 4.. s"i.-™ uM 6"d.'h*t *~> & smeration from our own. Settln in ri,, Mohammedan. The secret of its manifold jurisdiction is, of course, to be found m the strict and honourable observance of the rule laid .down by Mansfield—that m our conquests and acquisition of territory the laws remain until altered by the conqueror. Some thiugs, indeed, however deeply rooted in the systems of law, we take under our protection, we will neither enforce nor permit—slavery, prostitution, torture, suttee, human sacrifice, the imposition of civil disabilities on religious belief, the deprivation of liberty without due process of law. All these things are contrary to 'public policy'—are altogether too foreign to British ideas to permit of legal naturalisation within the British Empire.

"A very important principle laid down again and again by the .Privy Council is tuat in a case which raises the interpretation of a statute enactment in a settled colony, whose law is our own common law, their Loraships will not admit an argument based on English cases interpretative o£ an Kngiish staxute unless the colonial statute is not only in pan materia, but identical in substance and in fact. Many, a time, especially in revenue cases, have counsel, arguing before the Privy Council from au English case under our Income Tax Acts, been pulled up by their Lordships with the observation, ■'TliesEuglish case has no application; look to the contest q£ the llominion statute." It is a curious and notable fact that where. the right d£ appeal has been restricted or abolished the Courts of such Dominions have, after some wandering up alien tributaries o£ law, nearly always swung back into the main streams of Privy Council decisions, or, failing them, of the House of Lords. The very first case in South Africa of any. constitutional importance, the Middleburg (municipality casej followed the Privy, Council decision in the Bank of Toronto v. La'inba. In a recent leading case, known as the engineers' case, the High Court of Australia itself, after years of vagabondage in the wilderness of American constitutional doctrine as to the 'immunity of instrumentalities,' came right back to the principle of Privy Council decisions, the principle that a constitutional statute must be interpreted like any other statute, and without exotic notions about 'implied restraints.' When one remembers the excitement in Australia some 20 years ago over the conflict between the decisions of the High Court and the Judicial Committee in the group of constitutional cases known as the income tax cases, one o£ which managed to slip through the net of article 74, and came to their Lordships for hearing, this recent conversion—l can-call it, nothing else—of the High Court to the law laid down by their Lordships in Webb v. Outtrim, is a notable tribute to the authority o£ the Privy Council as a fountain of law long after its jurisdiction had been taken away. I might, if I had the time and you had the patience, say something similar about Sonth Africa."

Referring particularly to the autonomy, which has been imparted to Dominion and colonial Courts, Professor Morgan, said:—Lord Cave laid it down in a very recent case that their Lordships will not grant special leave to appeal in a question of construction of the criminal code of Canada. The council will not entertain appeals, or, rather, petitions; for leave to appeal in criminal cases unless some grave and substantial injustice has been done. Deprivation of a constitutional right to be tried by jury would be one such case, the improper admission of evidence essential to a conviction -would be another. Otherwise they will not interfere, for to do so would be to invade the local administration of justice. Lastly, they will hesitate long before allowing an appeal against an order for a new trial on the ground that the damages awarded are excessive, for the measurement of damages is a matter affected and qualified by local, conditions in the place where the cause of action arose and where the action was tried. There are many, other examples. I will glance only at one of them.- There is the provision by statute after statute for the creation of a truly Imperial panel of Judges, consisting of Judges of the Supreme Courts of the Dominions and of India, and for the appointment as assessers of a Judge of any Court from which an appeal is brought.