The Appellate Courts of the Empire
An Address delivered before the Scots Law Society, at Edinburgh
Published in ‘EDUCATION AND EMPIRE: Addresses on Certain Topics of the Day’,
Rt Hon. Richard Burdon Haldane, London, John Murray, Albemarle Street 1902
“The man,” once wrote a great thinker, “who acts on one maxim only is a pedant, and spoils things for himself and others.” There are many applications of this excellent proposition. I am going to take it as my text on this occasion. No single maxim, perhaps not any maxim, has prevailed in the minds of the founders of the two great tribunals of our empire of which I have to speak. No Bentham, no Austin, no man of merely abstract mind would ever have devised or been able to create them. They are only to be understood by the observer who bears in mind the undefinable character of the unwritten and developing Constitution our people live under at home and in their colonies, Constitutions which have been moulded by other hands than those of philosophers, and by other forces than movements of troops and declarations of legislative bodies.
Most of our judicial institutions, and particularly these two great tribunals, illustrate the truth which has of late become so apparent to our historians, that the bulk of the forces which operate to balance and change the political and social conditions of a people like the British has always operated, and must always have operated, from within rather than from without. Of these inward forces, some, such as religion, are more apparent than others. The action of what, using the word in a very wide sense, may be called education is more subtle, but hardly less far-reaching. But religion and education do not complete the list.
I have chosen as the topic of this address a part of the machinery of a third force, if more subtle than even education, hardly less potent―the administration of justice, and the administration of justice on its Imperial side. I hope to show you that this constitutes a real and most important portion of the silken bands which, with so little friction, hold our great empire together. Its action is often misunderstood. It is apt to be looked upon as a mere means of declaring, without altering, the existing law and Constitution. But that is a narrow view, and mischievous pedantry when the attempt is made to enforce it in practice. Fortunately for us all, as may be held even by the most devout believer in representative institutions, the law-changing functions of our great Imperial tribunals are so little observed and attract so little attention at the hands of those who love to apply abstract conceptions to Imperial problems that they have been suffered to operate unchecked.
The result has been an important chapter in the history of the development of an unwritten constitution. The justice of the Sovereign, the fountain in theory of all our justice, would inevitably, had it been administered by tribunals acting under the direct influence of the policy of her Ministers for the time being, have become suspect. But it has rarely been so administered. Governments fortunately have had lent to them but little power of meddling with it. The examples to the contrary, the English Star Chamber and the Scots Privy Council, have long since ended a brief and inglorious career of intermingling with judicial affairs. Incidents beyond our seas, like the trial of Nuncomar by Sir Elijah Impey, have been but few, and if they occurred today that far-reaching engine of Imperial justice, the Judicial Committee of the Privy Council, would relentlessly deal with them.
As showing the faith in this body which has been inspired into our distant peoples, it is told of a traveller who had penetrated into a remote part of India that he found the natives offering up a sacrifice to a far-off but all-powerful god who had just restored to the tribe the land which the Government of the day had taken from it. He asked the name of the god. The reply was: “We know nothing of him but that he is a good god, and that his name is the Judicial Committee of the Privy Council.” The sense of the presence of sure and effective justice which this body has come to inspire is something which we as Britons may boast of. It examines impartially the legality of the actions of the Queen's meanest subject and the Queen's Imperial Government. I have myself witnessed cases when appeals were brought against the constitutionality of an order made by the Queen in Council, advised, of course, by an Imperial Ministry to the Queen in Council. The Judicial Committee has reported that the appeal should be allowed, and the Order in Council quashed, as easily as if it had been dealing with the judgment of a Colonial County Court.
Such a spirit of fearless justice is of course the outcome of the calibre of the men who have sat in the tribunal. That tribunal has not been at all times equally strong. But, in the main, the spirit of the great judges who have from time to time presided over it has inspired their successors. Names like those of Mansfield, of Grant, of Kingsdown, of Cairns, and of Selborne will always be associated with its history. And here I pause for a moment. It is with the deepest sadness and profoundest sense of the loss, not merely to Great Britain but to the empire, that I recall the fact that William Lord Watson will sit there no more. I am indulging in no panegyric inspired by mere personal regard for a great judge whom I was privileged to know, when I say that he had rendered more services to the empire than many a distinguished statesman. Those who have followed closely the recent history of Canada know and can illustrate what I mean. In 1867 Lord Carnarvon passed his Confederation Act, which created the Constitution in accordance with resolutions passed in the various parts of Canada. Under this Constitution there was to be a Central Parliament and Executive at Ottawa to deal with the general affairs of Canada, and parliaments and executives in the provinces which should deal with provincial matters. The people of the Colony, who were suspicious of interference from Downing Street, also obtained power to create a Supreme Court for Canada, which should settle any constitutional questions that might arise, the intention being to get rid as far as possible of the Privy Council as a Canadian Court of Appeal.
This Court was not set up for some years, but when it was it began to produce a very different effect in the Colony from that which was intended. The judges took, or were supposed to take, the view that the meaning of the Confederation Act was that the largest interpretation was to be put upon the powers of the Central or Dominion Government, and the smallest on those of the Provinces. About twenty years ago a series of decisions were given by the Supreme Court of Canada which certainly gave colour to this view. There was alarm in the provinces, and the result was a succession of appeals to the Queen, for which special leave was obtained from the Privy council. I well remember the circumstances of these cases, for it so happened that, when a junior, I was taken into them on behalf of Ontario, which bore the brunt of the struggle with the Dominion before the Privy Council. So important were they deemed in Canada that the Provincial Prime Ministers used to come over to argue in person with the assistance of the English counsel.
Almost from the first Lord Watson took the lead in the decision of these appeals. He worked out a different view of the Canadian Constitution from that which had been foreshadowed by the Canadian Courts. He filled in the skeleton which the Confederation Act had established, and in large measure shaped the growth of the fibre which grew round it. He established the independence of the provinces and of their executives. He settled the burning controversies as to the Liquor Laws, and as to which Government, Dominion or Provincial, had the title to gold and silver. His name will. long and gratefully remembered by Canadian statesmen. It is difficult to realise that he is gone. He was the Privy Council Judge par excellence. His mind was wholly free from any tendency to technicality, and he never failed to endeavour to interpret the law according to the spirit of the jurisprudence of the Colony from which the appeal came. If it was a Cape appeal, he was a Roman Dutch lawyer; if it was an Indian case of adoption, he entered into the religious reasons for the rule to be applied. If it was a Quebec case of substitution under the old French code, or a Jersey appeal about the custom of Normandy, it was just the same. He imported none of the prejudices of the Scottish or English lawyer. In the House of Lords he was just as striking; whether it was a Scottish appeal, or an English case about some abstruse question of real property law, he was a great judge.
For you his name will go down to posterity coupled with those of your great Scottish lawyers, the men of whom Inglis was the type. For us in England he will be recalled as one of the most superb judges that ever sat in the House of Lords. But the greatest memory of him will, to my mind, be that which must long be preserved in the distant colonies of the empire, for which he was the embodiment, not only of a great legal intellect, but of absolute freedom from partisanship, and of a passionate love of justice.
I have lingered over the great name of one who is, alas! no more, because I feel that in Lord Watson we have the ideal of what a judge of the empire ought to be. Whether he sits in the House of Lords or in the Privy Council, a man in that position wields enormous influence. He not only decides particular cases. Such is the weight of the decision of this Court, that its spirit extends far beyond its letter, and it moulds and makes as well as interprets the law. How much this has been the case with the House of Lords you who are Scottish lawyers know. Its history as a Scottish tribunal of appeal has been an illustration on a great scale of the truth that fine legal intelligence, even in a comparatively unfamiliar field, is better than the understanding whose main qualification is only special knowledge.
The jurisprudence of all countries is much the same in its fundamental principles. Strip it of its technical terminology, and the difference in great measure. The master of legal principle who has a mind large enough to be free from provincialism is, therefore, in all cases the pest kind of judge. What he does not know he sets in its proper place and proportion, as he gathers it from the argument. This is why the decisions of men like Eldon, Cairns, and Selborne, even on technical questions of Scots conveyancing, have been so well received in the Court of Session. This is why a great judge like Watson could rule the local tribunals of the empire.
The reports of the decisions of the House of Lords in Scottish appeals are full of valuable illustrations of this truth. I remember as a student being puzzled by an English bankruptcy decision of Lord Eldon’s, which had laid down what was supposed to be the principle of justice in cases when the drawer and the acceptor of a bill of exchange had both gone bankrupt. No English lawyer dared to question what Lord Eldon was supposed to have decided in Ex parte Waring, and it was treated as binding in all the English Courts. But the same question arose in Scotland, and the great Scottish banks carried the point to the House of Lords. There it turned out that Lord Eldon had been either mis-reported or misunderstood. The rule in Ex parte Waring was put aside, and he would be a rash man to-day who gave an opinion that, Lord Eldon and Ex parte Waring notwithstanding, the English law was really different from what the House of Lords has declared to be that of Scotland. The Orr Ewing case may be mentioned as a further illustration of the same process. On the other side, I think I may suggest that the Scottish law of the construction of wills, so far as principles of vesting are concerned, has not suffered from those decisions of the House of Lords, beginning with Young v. Robertson, which have brushed aside supposed technicalities, and made the rules in the main the same for both countries.
If this has been in a remarkable manner the benefit of a great tribunal of appeal shared in common by Scotland England, and Ireland, it has been not less strikingly so in the case of the Colonies. It is not too much to say that the judgments of the Privy Council have been of enormous influence in guiding and educating the Colonial Courts. The power of appeal to a very strong tribunal has kept these Courts up to this mark, and caused them to take increasing trouble over the reasons for their decisions.
The extent to which the two great tribunals have been of value in interpreting the law in a liberal spirit, and not less in moulding and assimilating its various systems, suggests other considerations. The empire has developed enormously within the last few years. The Colonies show a desire for closer relations with the mother country. Already they have manifested this desire as regards the administration of justice, by accepting the invitation given them under the Bill which Lord Rosebery introduced, and which Mr. Chamberlain, finally passed into law, to send three representative judges to sit in the Privy Council. In the last three years Sir Henry Strong, the Chief Justice of Canada; Sir Henry de Villiers, the Chief Justice of the Cape; and Sir Samuel Way, one of the Australasian Chief Justices, have, from time to time, sat as the representatives in the Imperial tribunal of these parts of the empire. But why should the Judicial Committee of the Privy Council be any longer allowed to remain separate from the Judicial Committee of the House of Lords?
There are four law lords with life peerages who sit in the House of Lords as representatives of England, Scotland, and Ireland. Why should not a sufficiency of distinguished Colonial and Indian judges be made life peers and added to the House of Lords? Why should not this step be followed by the fusion of the two Committees, which would then consist of substantially the same members, into an Imperial Court of Appeal? There would, in that case, be one great tribunal. If I were a person of influence I would cause it to sit always in the House of Lords, instead of letting its members sit, as they now do when they represent the Privy Council, in a shabby room up a dirty staircase off Downing Street. The new tribunal would generally sit as one, but It might divide itself, and sit in divisions to dispose of the less important cases. It would be so strong that, if a Scottish or English judge in Edinburgh or London was incapacitated by illness, the law lord might come down and take his place temporarily, as do the English Chancellors and ex-Chancellors in the English Court of Appeal. Such a reform would make possible a really great tribunal, worthy of the glories of the greatest empire the world has ever seen. It would form a strong link in the binding together of that empire, for the Colonies, the groups of which would have sent representatives to it, would naturally feel it to be in part their own possession.
It would be a real step towards the only kind of imperial federation which seems possible―that which can be brought about naturally and without artificial pressure. It would give a new position to the House of Lords. The three colonial law lords would sit there for all purposes, and would be, on occasions, spokesmen of the people they represented. They would carry to these people ideas and experiences which were to be gained in the mother country alone. They would, on the other hand, tell us of the working out of experiments made in lands where the possibilities of reform were less restrained by tradition than is the case here. Above all this, they would form the nucleus of a non-party element in the House of Lords, an element the introduction of which might be the precursor of further changes in the composition of that House. That representatives of the colonies should, on the invitation of the Queen, sit in the Upper Chamber of the Imperial Parliament is no new or startling idea, and the reorganisation of the supreme tribunals of appeal―a reorganisation which is really matter more of form than of substance―affords a natural opportunity for a first step in this direction.
But I did not come here to-night to talk of anything even verging on a problem of Imperial politics. You and I, as lawyers, are concerned primarily to desire that our supreme tribunals should be of a calibre the finest, and a dignity the highest that we can make them. Imperialism of this kind is beyond party controversy, and with us the only question ought to be how we may most completely carry the colonies with us. After all, this is not so simple a matter as it seems. I have already mentioned that only a few years since the Parliament of Canada did, what as the Parliament of a self-governing colony it was entitled to do, set up a Supreme Court of Appeal at Ottawa, with the intention of abolishing for all practical purposes the appeal to the Queen in Council. It turned out that they had been in advance of public opinion, and as, in the statute setting up the Court, no such express words had been used as were necessary if the prerogative right of the Crown, as the ultimate tribunal of appeal, was to be taken away, the Judicial Committee decided that the appeal to them still lay. That time we were more fortunate than we ought to have been considering the littleness of the public interest at home in the Judicial Committee.
Today we are face to face with a danger of the same sort. The new federal proposals for the Australasian Colonies at first were intended to abolish the appeal, and in their present form may somewhat restrict it. It is to be hoped that these proposals will not, in the result, be found to have gone as far as some seem to have desired them to do. But this will most easily be averted by making our Australasian Colonies feel that we offer them the finest Court of Ultimate Appeal that the empire can produce, and by, as I hold, giving them a part to play in its constitution. As a faithful Imperialist my heart rather sinks when I go to argue an Australian Appeal at Downing Street, in which I know that there is keen interest in the Colony, and see only a scratch collection of three members of the Judicial Committee sitting at the green table, the others having been drafted away to recruit the judicial quorum for the day in the House of Lords. The public would not permit this if they only knew what was at stake at this moment, and both the present and the late Lord Chancellor have struggled hard to remedy what the Treasury, driven by the public, alone can effectually remedy.
There is another aspect in which lack of general interest in the Judicial Committee is most undesirable. That Committee has often questions of international and constitutional law of the gravest moment to determine, and it is not only of political, but of national importance that these should be resolved with the aid of the full strength of the Court. I will mention some instances. A short time ago the case of Cook v. Sir John Gordon Sprigg [1899 A.C. 572] came before the Privy Council, on appeal from the Cape. The appellants were grantees of certain concessions from a native called Sigcau, who was paramount chief of Pondoland. Pondoland was annexed by the Crown, and Cook, the grantee of the concessions, sued to have his rights under it recognised. It was argued that by the ordinary and well-known principles of international law property must be respected by the sovereign who annexes and assumes the duties and legal responsibilities of the former sovereign with respect to private property within the ceded territory. But it was decided that, admitting this to be true, no municipal tribunal had authority to enforce such an obligation, and that, even if there had been an express bargain between the two potentates, diplomatic pressure was the only remedy. Now I am not criticising this decision when I say that it is as startling as it is momentous. Grotius might well tum in his grave at such a refusal to recognise an integral part of the jus gentium as enforceable by a Court of Justice. The point is that to hold, rightly or otherwise, that if a wrong had been committed, it was a wrong for which the Courts could not take cognisance of any remedy, was to lay down a proposition as important, politically, as it was far reaching in its consequences.
I will give one or two other instances of the wideness of the range of the influence of this tribunal. In the course of the debates on the Death Duties Act in the House of Lords in 1894, the question arose as to what were the constitutional powers of the House of amending or rejecting the bill, which was of course a money bill. To some extent the question was admittedly covered by resolutions, which had been passed in the end of the seventeenth and the beginning of the eighteenth centuries by the House of Commons, and accepted by the House of Lords. To a less clear extent a further limitation on the constitutional power of the latter Chamber in regard to money bills had been established by the resolutions of the Commons, acquiesced in by the Lords, passed by Lord Palmerston's Government, after the rejection by the Lords of the Paper Duties Bill of 1860. It turned out in the course of the debate of 1894 that the question of the extent of these limits had been referred by one of the Australian Colonies to the Queen in Council, and that the members of the Judicial Committee had given a ruling on it. The point had arisen in regard to the powers of the Upper Chamber of the Colony over money bills, and the Privy Council advised that the theoretical power of amendment, which undoubtedly existed as a mere matter of law, could not constitutionally be exercised at all, and that the power of rejection in toto was subject to grave constitutional restrictions.
Another instance of the same sort of quasi-political procedure arose in a case, not reported but in which I was engaged as counsel in 1883. The Judicial Committee, presided over by Lord Chancellor Selborne, had to settle the boundaries between various Provinces of Canada and the unorganised territories which are under Dominion control. The inquiry was very complicated, but finally the Lord Chancellor intimated that the Committee was in a position to give its decision. Counsel proposed, following what would undoubtedly have been the true principle a few years previously, that as the fixing of boundaries was within the prerogative of the Crown, the decision should receive effect by an Order in Council. But the Lord Chancellor intimated that the Committee considered that the growth of the power of Parliament made it proper that the new boundaries should be laid down, not by a Prerogative Act, but by an Act of Parliament itself.
I will trouble you with only one more case. Some years ago a prisoner in the Island of Jersey was sentenced by the Jersey Courts to death. She turned out to be a French subject, and it was deemed advisable by the Imperial Government, instead of carrying out the sentence, to hand her over to the French authorities. The Jersey authorities refused to agree. The Board which controlled the Jersey prison had a majority who sided with the Island. The Imperial Government had great difficulty in getting hold of and releasing the prisoner, and to prevent a recurrence of this difficulty an Order in Council was made, on the advice of the Secretary of State, repealing a provision of an old Act of the Jersey States or Parliament, and securing to the Imperial Government a majority on the Prison Board. The Island appealed to the Queen in Council against the Order of the Queen in Council. A special Judicial Committee, very strongly manned: sat to consider the question: which proved to be one of immense historical and constitutional interest. It was this. As you know, the Channel Islands are the last fragment remaining, since King John lost the rest of the old Duchy of Normandy, and are held by the Queen as Duchess of Normandy. Now undoubtedly the Queen is only a constitutional monarch in so far as she is Queen of England. That is to say, the old struggles between the Crown and the Parliaments of our forefathers had established the right of Parliament to withhold supplies, and finally to restrain the Crown from legislating excepting with the advice and consent of Parliament. But there had been no such struggles in the Duchy of Normandy, and two eminent historians, Mr. Freeman and Mr. Palgrave had differed over the very point which now came before the Privy Council, the right of a Norman Duke before the Conquest to legislate without the advice and consent of his Curia, the body from which the States of Jersey had inherited their traditions.
The law officers argued the case for the Imperial Government, and it fell to myself to open the attack on the Order in Council for the Island. We had prepared, with much assistance, elaborate collections of historical materials on both sides. This ponderous collection of charters and other documents forms, by the way, a unique source of information, available today for anyone who cares to undertake to write the constitutional history of the Channel Islands. I opened my case on three grounds: First, that Duke Rollo and the predecessors of William the Conqueror could be shown, from the fresh materials which our experts had collected, to have legislated only with the advice and consent of the Curia, and that therefore Queen Victoria must be presumed incapable of constitutionally repealing an Act of the Jersey States of Parliament without the advice and consent of that Parliament. Secondly, that although there had been no struggles over supplies in the history of the relations of the Crown with the people of the Channel Islands, there had been a series of charters extending the powers of self-government of the people, given after each war of England with France, as a reward for the assistance of the islanders, and that this had had an analogous constitutional effect. Thirdly, that the new Order in Council was a breach of an understanding come to between the Government of Lord Melbourne and the authorities of the Island fifty years before.
The case was heard by the most imposing tribunal I ever argued before. The Prime Minister, the Lord Chancellor, two ex-Chancellors, four law lords, a Bishop, and two lay Privy Councillors were the judges. In the end they advised Her Majesty to quash her own order in Council, on the third ground, that it had been a breach of the old understanding, and, after the fashion of concrete-minded Britons, hinted, not obscurely, that they should be displeased if the law officers pressed them to decide at all the great constitutional question whether the monarchy in the Channel Islands was a limited one. Lord Watson, indeed, bluntly indicated that he should decide nothing of the sort. Needless to relate, the islanders went away much impressed with the impartiality of the Queen's great tribunal. There is a report of this case in the State Trials, but, oddly enough, the newspapers of the time missed it.
I have said enough in the course of these observations to indicate to you my own strong conviction that the judicial functions of the Privy Council have attracted less attention at the hands of our rulers than they ought. There is a larger conception of Imperialism than that which forms a party cry at elections. This larger conception of Imperialism is less controversial, but not less far-reaching. It recognises in the Crown and in the system of imperial defence great features of our existence as an empire. But it refuses to recognise in these the only features of that existence which demand attention. It may be that in the sphere of education, in the foundation which some are at present endeavouring to compass of an Imperial University, a new link will soon be found. But this at least Imperialists, such as I own myself desirous of being reckoned, hold to be certain, that in the administration of justice, and in the existence of a great but scantily recognised central tribunal, we have one of the most real bonds that can hold together the distant parts of the Queen's dominions in those relations which only a common heritage can give.