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New York 1460J USA '^SS (716) 482 ~ 0300 - Phone SE (^'6) 2S8- 5989 -Fan WOTHKR SIPRKMI-: ((^IKI Willi AlMMVDlV \i WII.l.' \\l kl WVK k kIKIil 1,1 ' KM'klMKli > oM I 111 \\ \-lllS'.l'iS I'Korl I I1IN(.- .11 nil \.MI Kh l\ >■" II l\ icM.' nil JriiiiiM -.1 ri I.I MIS 1 m Imkk I)k-i \im k. mill MIllNM lll^l'l II tu With the Compliments of Wiu.iAM Rknwkk Riddelt.. «.sr-:.ro.'M,-.^^ — s«^ ., ;..^ ANOTHER SUPREME COURT WILLIAM RENWICK RIDDELL eleven hrnidrcdmifallfvf^ C'om which I come), leave Toronto at noon Id I^^T, .""'''■ ' ™"'<' nation two days ttw^ %'™''''! ""^' "' ""^ '^"■ "coming .11 the wav»™,T . ' j'™ 5"" '^ about Washing, faa"!L7!°'*"«"" '^^''<'-. as well as At tte tat m«^" rf ThT^""' '"'""='=• pheusHeno-Snow ZLtt,^!:r ""°' ^^ '"■ velopment of the A™. • '"'"^'"S Paperon the "De- Co4 over sttes^ ^L.".""'!"' »' J'-Mction of -ev. that the SSne'i'.ri-l^ttr^S RIDDELL XO5 composing the English Empire . . . ought to be m charge of a specially constituted tribunal fitted by train- ing to act judicially where the judicial method was ap- plicable;" and he pointed out that that tribunal was the King-in-Council. That tribunal still exists and flour- ishes in full vigour, and it is that tribunal which I call "Another Supreme Court." II is not intended here to reiterate what has been so well stated in Mr. Snow's address but rather to supple- ment it: nor shall I go largely into the history of this tribunal. All who are interested will find its history traced in an address before the Missouri Bar Associa- tion in 1909, published in the American Law Review for 1910, pp. 161-176. Confining my remarks in great measure to the pres- ent and the recent, the first thing that .s to be said is that this"Court" is not a court at aU. The Judicial Com- mitter of the Privy Council is simply a committee for spt-ial purposes of the Privy Council of the King. In .eory the King is the fountain of all justice through- out his dominions, and from time immemorial he has exer- cised jurisdic -on in his Council which acts in an advisory capacity to the Crown. In theory also every subject has the right to submit his grievances to the King— "to seek the foot of the throne." Petitions of that nature which came before the King were after the development of Pariiament referred in most part to Pariiament which thus became the chief appellate tribunal. From early in the fourteenth century Receivers and Triers of pe- titions were appoi.ited to relieve Pariiament of clerical and routine work and to aid in the administration of 106 J^ICIAI SSTTLElttKT justice. These ^"t the Council w;^ "^a not conceive of it- KIDDELI. 107 self as beiug of statutory origin. Moreover, the Privy Council also continued at times and in certain cases, e.g., in cases of riot, to act outside of the Star Chamber and as the Priv>- Council had acted before the Statute. Whether the 'Court of Star Chamber' was a Court appears within a few years after the nassage of the Act to have been questioned by the Common Law Judges; the great authority of Coke is that the judgment of these judges was 'a sudden opinion.' " The court fell into disi. . Mte in the ' \o: and Stewart times and it was abolished in 1640 by Statute 16 Car. j^ (._ 10— but this Statute in no way artected the exist- ing right and duty of the Cov^cil to hear appeals from English territory t • 'hich th. 1 ommon Law writ did not run. In 1667 a Committee of the Privy Council was formed to hear such appeals, a Judicial Committee, and such a Committee has continued to the present day. There has been legislation more than once but no change has been made in the status of the Judicial Committee. The members of the Committee are gentlemen who are mem- bers of the King's Privy Council and who are associ- ated together for the purpose of listening to petitions from a private individual, corporation, a Province, complaining of wrong. They are to advise His Majesty what he should do in the matter, but they are not Judges. They have of course the same power as any Court to rectify mistakes which have crept in by misprision or otherwise in embodying tlieir judgmer..: Rajunderna- rain vs. Sing (1836) 7 Moore P. C. 117. This body of gentlemen sits in a dull old room in a JTOlCIAt SETTLEMENT raised—here a- j 'J"°""") One end of .1,. ™« are all dofte^t ,1 „ "" ^'"r. X^^f Wack clottes, gown, Sg td „7"'™^ ^Sl"-* «Jte P«'te the end of the table a „v ,. Y™'" =rciAI SETTLEMENT P^ty, as charming a comn^^. *° '^' Gladstonian « accomplished as'a la^^r^"" ^'^"^'^ ^^P-^) as h^ f°d metaphysical Viscou^H^M ' " ^^° ^he acute --s remember with Stt t^ "'°" ^^^ ^m-! Bar Association i„ Montreal a f^'''"«'^^ American come the Scot, Andrew G S'J^'' ^'"'^ "^°- Then sometime Lord Advocate andThe^T"'!' ''''^ ^""-^^ of Scotland, the Irishman 71 r ^°'^ J^^^'^e Genera he brilliant Attorney^J^f' ^/^^^-n, formSy Wd Shaw of DunferniH^ T ' ^"^^^^^ another Scof ^ord Advocate for S^!?-^^ Solicitor Gene^l^ unworthy successors of^ds w^?' '^" '^"^^'"^^ «e no no^more. "^"^^^^ Watson and Robertson now L^f f^" -^^^^^ - power in ^ord Justice Fletcher Moulton " ^'"^^ ^"°^ as accurate scientific knowS Df \""" "' ^^' and ferdT^ ^ ^-^-^ and'^TRls^"^^^ °^ ^- aen Lord Parker, who came to thl'r-' "^"""^ °e«- years' experience as a TuZ f I ^°""^" ^^^er seven ^<^e, and Lord Sumner-^^^ hld'^ f^^ ^^^^ of jZ P«"ence on the Bench Tj^ ''"^^^ '^'^ years' ex- - ecclesiastical matte'; Lord W™'-" '"^^^ ""^^ Buckley ^as an authori y on ^ ^'"^"^ ^^^o as Mr. none of his repute when i^K ^°°^Pany Law and lost Justice Buckley, and sTr Z^^^L'''-{^^'-^ andVo^rd ^^ ftgh Court of Justice^eretf f '^" ^^""^ ^-'- ^nere are other British mem- RIDDELL III bers ex officio whom I do not wait to name; they seldom if ever take part in the hearing and decision of appeals. Let us leave now the list from the Mother Country and see who come from across the seas. We find Sir Samuel Griffith, Chief Justice from Australia, Sir Edmund Barton also from Australia, Sir Charles Fitzpatrick, Chief Justice of Canada, Sir James Rose-Innes, Chief Justice of South Africa and Sir Lawrence Jenkins formerly a Chief Justice in Lidia. But the list is not exhausted; Syed Ameer Ali, a Mohammedan claiming to be a Syed in fact, that is, a descendent from Mohammed and glorying in his faith and race, has been for many years a member of the Committee. "When there is an Ecclesiastical appeal, Archbishops and Bishops also sit— as ecclesiastical assessors; in the rare case of an appeal from beyond the seas in an admi- ralty matter, Admirals or other naval officers sit as naval assessors. For example in the well-known case. Read vs. Bishop of Lincohi (1892, A. C. 644) the Bishops of Chichester, St. Davids and Lichfield sat; and in a case from his Majesty's Supreme Court for China and Corea in 1908 (A. C. 251) Admiral Lloyd and Conamander Cabome." What are the functions of this extraordinary body? "At the present time this Judicial Committee hears appeals in English cases only in Ecclesiastical matters. Upon every appeal of this character, at least three Bish- ops must sit as assessors, under the provisions of a rule made in 1876. The ultimate appeal in other matters from England goes to the House of Lords. In Scottish and Irish matters the Committee does not exercise any appel- «w« •»».W f!*.'.! JLI.LUW iL^MLi:: f ,^;nm^ ! .yi iia JTOICIAI, SETTLEMENT peals. Li Eurone from 11 A^ ^ '■^' '^^'^e ap- in Africa from the Cap« of cLwxf ^'^'^ ^^P^^^' vaal, the former Fr^ L?^ .?°P^' ^^'^' ^he Trans- land, Bechuanaland, the Fa^J^ t'"' ^'^''' ^''''*'^ Gambia, Griqualand aid o^^and^ ' ^'""^^"^' iMown; in Asia from p T 5 '^^' °'°'"* °^less un- N. W/Xerrtto^ Adef r y' ^^^^"«^' Madras, the Upper and W^^ '^''"' ,^«^"<^Wstan, Burmah, Hong Kong. fiTrL l1' ^""J""^' Ceylon, Mauritius New Guinf; FijT Netlr' 1? ^T^'^'^' ^"^^^^>- Islands and in A^;rkrfrfrr'/'^°"' and Pitcairn Ontario, Quebec NolVr.^x.'^^ ^""^ ^"^ Pro^ces- ish Columbia and wJ''^^^^^ ^^^^^^ Brit- Bahamas, tmakf B^^^sh I T"""'' ^'"""'^' ^^ in South Lerica Ld l^^""^"''!' ^^ ^^°™ Guiana lying in that Cr^ibe" 8^" "°*'" ^"^^^^ ^^^-<* mu!?;etwete^"";p"r f"^™'"^ -"-"-ties English-speST?,;,^! mS'L^^^^^^^ ^^" <>^ ^^^ in Quebec the Coutume 1 P u^ ^°'"^ ^^^^^^^^^ tion, the many CC^H -""'^ '^°^'^ "^^^'fi^^" East Indian p^lpks S ^ '^°"' '^' ^^ *^" "^^ of Africa, the^m I't T ^""''^ ^'^ °^ '^' South an^ore com ^efr^^^^^ -oment and the most far reach^g cWactel;'^ ''"'"' RIDDELL "3 I do no lowever dwell upon i vate litigation. No small part of the labors of the Judicial Committee has been the decision of what in the United States are called constitutional questions The word "constitutional" has not the same connotation with us as with you. In the American sense "constitutional" means in accord with thp written "constitution." With us it means in accord with the more or less vague principles upon which we conceive government should be carried on. With you \ hat is imconstitutional is illegal however just and laud- able it may be, with us that is unconstitutional which is wrong however legal it may be. It was decided in re Bedard (1849) 7 Moore P. C. 23, that the Governor of a Colony like Canada represented Her Majesty and had power (e.g.,) to grant a patent of precedence to a uewly appointed judge. But the power of a Colonial Governor in Council must he exercised in (substantially) the proper and regular way. Sometimes a Judge has been "amoved" by the Colonial authorities and reinstated by the Judicial Committee because un- justly treated by being deprived of a right to be heard. Sometimes in such a case the "amotion" has been sus- tained. In Montague vs. Lieutenant Governor Van Dieman's Land (1849) 6 Moore P. C. 489, the Judge was called on to show cause against an order for suspension only and he was amoved. The Committee held that the irregularity did not prejudice him anv2 sustained the order of am-.tion. I shudder to think wha. would happen if an Ar^erican Court were to decide the same way. There are very many cases dealing with the power of a Colonial Parliairent to punish for contempt. A com- mam 114 JUDICIAL SETTLEMEMT into contempt is inh^^l • ^ ™^ "' authority authorityTI^^Tv ."T^ ^"P^"'^ '^^^^^-t^ve Ban.ttTx836)?S:^.er^^^-- - Beaumont vs. Cot" i^d^r cXiiii^r" ^^ '^"^ ^"^^^ ^^^ ^^-- af the limits of krist^^^^^^^ '°"^.^*""^^ "^^^ ^ question and such cas^' 'Z^^l '^^^'J^' ^^^ ^""^-^ with great frequenL^ ^^ ^^°'^ *^^ Committee -quirf^edSSomTc:^' T ''""^^^^ "^^^ In-perial Parliament .« f ° ^^"^ P^^^'"^ °^ the Hoiloway (x"' )TmL P ?T' ? ^ ^^™ - a demise of the Cro^T /^°' ""^"'^ *^^ ^^^^^^ of But in Z "^"^^ ""^^^ consideration fa the ambi. o]^, J1S ;^i^ ;-»r^' ""ta-^ "il.- sense an aeent nr ,j^i f ""^ ^°^ '^ is not m any presaiDtd, The Dominion Parliament has "Crim- RIDDELL "S L. O- a- le )- y e inal law" for one of its objects but that does not enable it to make into a crime an act committed outside of the Dominion as the Imperial Parliament could, Rex vs. Brinkley (1907) 14 O. L. R. 434- I heard stated this morning something that startled me more than anything else in the whole course of my legal career, namely, that the Judicia. Committee of the Privy Council has been declaring certain laws passed by local legislatures void as against justice and common right. I have been practicing law a great many years, and I have never found such a case. What the Judicial Committee of the Privy Council does is this. It locks at the Imperial statute by which the local legislature is formed. It j&nds out the powers which are given by tb.*t statute, and if any powers in that statute are exercised, the Judicial Committee never considers whether such exercise is just or right or honest. I shall give you an example. Not so very long ago, before I went in the Appellate Division, and was sitting on the trial bench, I had oc- casion to try a case, the Florence Mining Company vs. Cobalt. The Florence Mining Company claimed the ownership of certain mining lands. The Parliament of Ontario, the Legislative Assembly— we have only one House there, and that is enough for us; we are too busy up in Ontario, and too poor, to be bothered with two Houses. I may say that in seven out of nine provinces in Canada they have only one House, two of the provinces still retaining their two Houses; but we in Ontario cannot be bothered with two, as I said. Well, the legislature of the Province of Ontario passed t itfiiiiii ' " ' :^a»^=-»^.-" n zi6 JUDICIAL SETTLEMENT an Act saying that the land should belong to the Cobalt Mining Company, mentioning the particular land. The action was brought by the Florence Mining Company against the Cobalt Company, and tried before myself. I went into the facts fully, tried out the facts in the sense of hearing aU the facts. I thought it fairly weii proved that the land was the property of the plaintiffs origi- naUy and before that Act. But I decided that the prohi- bition, "Thou Shalt not steal" does not extend to the sovereign 'egislature, and I said so in just those blank, bald, words. I decided that the legislature had the right and power of taking that property, even if admittedly of A, and saying that it should be the property of B. Now, a more gross thing than that, absolutely against aU common right, nobody could think of, nobody could conceive of. I refused to pass upon the facts; I said, "I shall assume the plaintiffs have proved their case. I shall decide this upon the constitutional question." It went to the Court of Appeal; the Court of Appeal went into the facts very fully and decided against the plaintiffs on the facts, but at the same time the Court of Appeal said that the law constitutionally laid down by the learned trial judge was unexcep^'onal and perfectV good law. That went to the Privy Council, and the Privy Council upheld this decision on both grounds. They said that even if the plaintiffs had proved their case the legisla- ture of the Province of Ontario had the power to take away the property of one person and give it to another. What the Judicial Committee has done (I venture to think), in all those cases to which my friend has alluded, KIDDELL 1x7 has been to go carefully into the Acts of the legislatuitj; that they have gone into the charter of the Province, if you please to use that terminology, and have investigated what power that charter has given to the legislature. They have decided in more than one case, no matter how small a legislature it may be, even of the smallest British island in the world, that so long as the legislature is act- ing within the ambit, within the four comers of the power which is given to it by the Imperial House, they have the power to do as they please, steal, or anything else they see fit. In our system it is the people who are the ultimate court of appeal. If the Government did any stealing the matter would come before the people at the next election, and if the people wanted a government that stole, I suppose the people would return the government at the next election. But it is highly probable that if the government did anything of that kind, there would be such a cry raised that it would not be continued. I want you to understand that we are not a larcenous people naturally. It is at once manifest the very large number of cases which involve the extent of the powers of the Colo- nial Legislature. In Canada the question has been for nearly half a century complicated by the division of legislative power between Dominion and Provinces. The British North America Act of 1867, sometimes called the written constitution of Canada, sets out fully the objects of legislation of Dominion and Province respec- tively. The judicial interpretation of this Act has called out the greatest ingenuity and learning from the Com- ■■■^JOSmsSKtimkUmmtt m unsttmM'v zi8 JUDICIAL SETTLEMENT mittee and Counsel, and the end is by no means yet. The same sort of dispute may be expected in Australia now federated. In addition to determining whether this or that legis- Ution is intra or ultra vires ("constitutional" or "uncon- stitutional" in the American terminology) questions have ansen more like disputes between States. In the British North America Act in addition to the division of legislative functions, there is a division of property between Dominion and Province-and it must be remembered that a gift of legislative power concern- m any property is not a gift of the property itself. Attorney-General (Dominion) vs. Attorney-General (Pro- vmce) 1898, A. C. 700, at pp. 709-711. Many disputes concerning property have come before the Judicial Committee and it has always been considered that such disputes are to be decided on a rule or principle of law and not on what might be thought fair. Domin- ion of Canada vs. Province of Ontario, (1910) A C 637 The Judicial Committee decides the law; it has no hesi- tation, if necessary, in changing its action. It has said in at least two cases that, "What we said on such an occasion is not law; we were mistaken. The law is so and so" and they decide the law. The Committee has been called on to decide the owner- ship of real estate of which the owner died without leav- mg heirs and without a will. This was aUotted to the Provmce not to the Dominion, Attorney General Onta- no vs. Mercer (1883) 8 A. C. 767. An interesting case arose under the foUowing circum- stances. In 1763 certain tribes of Indians were granted KIDDEIX "9 possession of certain lands as hunting grounds "for the present." In 1873 the Indians surrendered this land; (we have had no trouble with Indians— no "H. H." can write a "Century of Dishonor" concerning Canada) and the question arose who should own it. The Judicial Conunittee supported the claim of the Province and affirmed the decision of the Canadian Courts — St. Cath- arines Milling & Lumber Co., vs. The Queen (1888), 14 A. C. 46 — ^the same kind of question arose in a later case which I do not stop to discuss. Attorney General (Dominion) vs. Attorney General Ontario (1897) A. C. 199. British Columbia came into the Dominion in 1871 on the express bargain that the Canadian Pacific Railway should be built across Canada. The land was owned by the Province. The Province granted to the Dominion lands 20 miles on each side of tiie Canadian Pacific Rail- way's line, so that the Dominion could give that to the Canadian Pacific Railroad as a bonus for building the road. It turned out that there were precious metals in and imder part of this land. The Dominion claimed them, but the Committee held that precious metals, gold, and so on, are not incidents of land but belong to the Crown, and therefore like other royalties, belong to the Province. Attorney-General (B. C.) vs. Attorney- General (Canada) (1889; - » 295. So we have the fact of land solemnly gra ; /y the Province to the Dominion, but that grant aid not carry the royalty — that is, the precious metals which were in and under that land. The ownership of fisheries and fishing rights, of rivers and lake improvements, and of harbours was strongly SfO JX7DICIAL 8STTLE1IENT contested and was decided by the Committee, Attorney General (Dominion) vs. Attorney General (Provinces) (1898) A. C. 700. Swamp lands in Manitoba were a matter of dispu*- and decision, Attorney General (Manitoba) w. Attorney General (Canada) (1904) A. C. 199; the foreshore in British Columbia in Attorney General B. C. P. R. C. m. 1906) A. C. 204; water-rights in the railway belt in BriUsh Columbia in Burrard P. Co., etc. w. The King, (191 1) A. C. 87, and fishing rights in the same Province Attorney General (B. C.) vs. Attorney General (Canada) (1914) A. C. 153. It will be seen that the curious situation has not infre- quenUy arisen of land or other property situated with- in a particular Province being claimed as its own by the Dominion; and indeed aU property in the Dominion must be in some Province or another (except such as is in the Yukon and other non-provincial territories). Since the pubUc property of the whole of the British dominion is in the King, it would seem odd that the King in one capacity would be at law with himself in another, but there is no practical difficulty. When a dispute arises we make the Attorney General of the Dominion party of the one part and the Attorney General of the Province party of the other part. .inother dispute, a dispute between two provinces, is not unlike certain of the disputes which have come before the Supreme Court of the United States: "By the British North America Act (1867), the Prov- ince of Ontario was given the same limits as the former Province of Upper Canada. Ontario always claimed RIDDELL lai practically the whole district west of Lake Superior to the Rocky Mountains. She claimed originally up to the South Sea, but she Umited her claim ultimately to the Rocky Mountains. And there is a great deal of authori- ty, too, for the supposition that the old Province of Upper Canada went as far west as t^-e Rockies. "In X870 by the Dominion Act, 33 Vic. c. 3,the Province of Manitoba was formed with its eastern boundary at the meridian of 96" W. L. At once mere "/as a movement in Ontario, the Government of that Province claiming that it went further West than 96' W. I although this had long been considered in fact about her western limit. Many communications passed between the Governments, but without result. Tlicn in 1876 an Act was passed (39 Vict. c. 21) extending the li-nits of Manitoba to the •westerly boundary of Ontario.' You can see at once that trouble would arise. The Dominion and Manitoba claimed that the westerly boundary was about six miles east of Port Arthur, coming east about where Grand Portage, Minn., is on the shores of Lake Supe- rior. Armed forces of tb^ Provinces of Manitoba and Ontario took possession of Port Arthur, but the scandal was abated by an agreement to arbitrate, December 18, 1883, by the Dominion and Province. Ontario named William Buell Richards, Chief Justice of the Province, and when he became Chief Justice of Canada, his succes- sor Robert A. Harrison, the Dominion, Sir Francis Hincks, and the two Governments jointly Sir Edward Thornton the British Ambassador at >\ ashington. "These arbitrators made, August 3, 1878, a unanimous award in favoiT of the OnUrio contention, which by this -v^->rtmM&e Dommion claimed that no government can bind the country to anything that requires an act of Parliament; (2; If not, what was the true boundary, and (3) what legisktion was necessary to make the decision effectual. The Judiaal Committee, August 11, 1884, decided (i) m the absence of Dominion legislation the award was not bmding, (2) the award laid down the boundary cor- rectly, and (3) Imperial legislation was desirable (with- out saying it was necessary). "The Imperial Act (1889) 52 and 53 Vic. c. 28, carried the decision into effect, and ended the controversy " I should like to add here some words of my own with which I closed the address to the Missouri Bar Associa- tion already mentioned: "There have been occasions upon which suggestions have been made, more or less seriously, that the juris- diction of the Privy Council over self-governing communi- ties, such as we have in Canada and as are in Australia and New Zealand, should cease. For example when the Supreme Court of Canada was established in 1875 there was considerable discussion looking to the abolition of the nght to appeal to the Privy Council from the Court so estabbshed. Wiser counsels prevailed and no attempt was made to prevent such appeals by legislation. Now an appeal lies as of right from the highest court in each RIDDELL "3 Province in cases of sufficient magnitude and also by special leave from the Supreme Court of the Dominion. "No feeling exists that this should be altered— occasion- ally of course the unsuccessful party to an appeal, and those who sympathise with him make a doleful noise against the Board but this speedily dies out. It is wholly beyond controversy that Canadians gener- ally would deplore any attempt to interfere with their tradi- tional right to apply for justice to the foot of the throne. "In other colonies the right continues in a more or less complete form— and from all appearances will so con- tinue while the British Empire itself continues— and may that be not ad tnultos annos done, but in aeternum." Whatever may be the case in respect of private liti- gation, it seems to me that the Judicial Committee will have forever the task of determining controversies be- tween the integral parts of the Empire. 11 «L '^mnMmmmaiaaKi^v^- ^; ul i .\PPENDIX B THE HISTORY OF THF, I'RIVY COUN'CII. AS A LEGAL TRIBUNAL OR COURT I: [Note: After the reading of the paper ''Another Supreme Court," Mr. Justice Riddell was requested by the Association to supplement the paper by an account of the history of the Pri\y Council as a Court — the followinR is accordingly furnished.) The King's Privy Council is a " Common Law" body, that is, it was formed by a process of evolution when the common law of England was in the making and not uuo iclu by decree of Monarch or Act of Parliament. The precise origin of the Privy Council is of little importance, historically or otherwise: we know that l)efore times which are in the full sense historical the King could not see to it personally that all bis subjects had justice done to them; and he had therefore the assistance of a body of men chosen by himself, a Council. To this Council was entrusted the administration of justice; in course of time, formal courts were formed from the Council, the Courts of King's Bench, of Exchequer, of Common Bench, with special functions and apparatus for the performance of these functions. But thereafter there remained no inconsid- erable part of the original jurisdiction of the Council unallotted and this con- tinued to be the case on the crystallization of the Court of Chancer>'. 'I he Privy Council continued frcm time to time to exercise "a kind of extraordinary and corrective juris'iiction to pre>ent violence, corruption or intimidation; and especially combination and conspiracy to obstruct or prevent the course of justice." This was the case before the creation of the Court of Star Chamber in 1487 by 3 Henrj- VII, c. 1, the name of the Court being taken from the Cham- ber wherein the Council was accustomed to sit — the Court of Star Chamber, as Hallam points out, was in fact .■> ^jdicial Committee of the Privy Council. .After ttie statute, the Privy Council continued to sit on occasion under its original Common Law jurisdiction and quite independently of the statute: but most of the business was done in the statutory court. The Court of Star Chamber was abolished in 1640 by the act 15 Car. I, c. 10, which provided that neither the King nor the Privy Council should have jurisdiction over the estates of any of the subjects of the kingdom but that all questions respecting the same should be tried and determined by the ordinary course of law in the ordinary courts. 348 ^< APPENDIX B 349 But this Act of the Long ParlUment dealt only with subjects of the King- dom and not at all with subjects of the King in territory without the Kingdom: and any subject in a dependency had still his right to apply to the King in Coun- cil as before. Moreover at the Common Law the original jurisdiction to decide cases "relating to the boundaries between provinces, the dominion and proprie- tary government is in the King and Council," as Lord Chancellor Eldon says in the famous case of Penn v. Lord Baltimore (i 750) 1 1 Vesey Sr., 444 at p. 446. This jurisdiction was not at all interfered with by the Act of 1640. It does not seem to be quite certain when appeals came first to the Cou.xil from non-English territories of the King of England; but apparently it is prac- tically certain that they came from the Channel Islands. Until the seventeenth century the foreign dependencies were not of great importance; but in hat century appeals are found coming in; and in 1667 a special Judicial Comr. 'ee was formed by the Privy Council from its members to deal with such appeals. This was without any authority from Parliament, for none was needed, the authority of the Common Law being sufficient. Mtet the Revolution of 1688 the appeals began to increase, and in 1691 an order was passed that "all appeals who are to report the matters so he - to the King in Council." This over appeals from the supre ne coui century Colonial appeals began to coi. heard as formerly by the Committee them and with their opinion thereon :ttee for Appeals" had jurisdiction :ie Colonies. Early in the eighteenth in in considerable numbers: and many most important matters were passed upon by the Committee. The celebrated Penn v. Lcra Baltimo'e case already referred to was in fact to determine the rights of Pennsylvania and Maryland over part of the present Delaware: but it was arranged that the matter should be tried a^ ^ civil suit in Chancery: this was done: and the King in Council made an order in ac- cordance with Lord Hardwicke's decision. But this case can not be cited as an instance of judicial power. While there are many instances of the decision by the Committee in Colonial times on private litigation, I am not aware of the exercise of judicial power in any public controversy, e.g., of boundary, etc. (Mr. Snow's valuable address at the first meeting of this Society 'hould be consulted.) Indian appeals stand on a peculiar footing: the right to appeal was first given in 1773, 16 George III, c. 63. Turning now to another jurisdiction of appeal we note that orig' ■■■■"'^- within England appeals, so far as they were allowed at ali from the Cou. ^s of Law, went to the Court of Elrror, or to the Lords — from the admiralty to the King in Chantery, that is in practice lo a Court of Dele- gates and from the Ecclesiastical Court to the Pope, that is ir practice to Delegates appointed by the Pope. After the Reformation in 1532 (24 Henry 8, c. 12) appeals to Rome were forbidden; and the next year (25 Henry 8, c. 17) it was provided that appeals from the Archbishop's Court should oe to the King in Chancery — he appointed Delegates forming a High Court tf Dele- gates to hear these appeals. 35° JUDICIAL SETTLEMENT In 1831 (by 1 and 3 VVm. 4, c. 92) the appeals in Ecclesiastical matters which since the Reformation had been to the High Court of Delegates, as well as ap- peals in Admiralty were transferred to the King in Council. The following year the statute 3 and 4 Wm. 4, c. 4« was passed which regulated the constitu- tion of the Judicial Committee for the hearing of appeals— which Committee v/as to consist of the Lord F.esident of the Council, the Lord Chancellor, and such members of the Privy Council as shall hold the office of the Lord Keeper, First Lord Commissioner, Lord Chief Justice, Lord Chief Baron, Master of the Rolls, Vice-chancellor of England, Judge of the Prerogative Court, Judge of the Admiralty, the i hief Judge in Bankruptcy, and all Priv)- Councillors who shall have held any of these offices— to which the King by sign manual might at any time add two other Privy Councillors. By the same Statute of 1833 it was provided that all appeals from the .Ad- miralty, Vice-.\dmiralty, or other Courts abroad which theretofore had lain to the High Court of Admiralty in England should be to the King in Council. By the .Act of 1832 (2 and 3 Wm. 4, c. 92) the appeals which in Admiralty cases had from even before the 2sth Henry 8, gone to the King in Chancery and so were heard by the Court of Delegates, were transferred to the King in Coun- cil. So by 1833, we have the King in Council vested with the statutory pow- ers of hearing Admiralty and Ecclesiastical appeals, and still continuing to exercise a power which did not depend upon Statute of super\ising the pro- ceedings of all Courts in the British Dominions not within the four seas. All these appeals— all appeals to the King in Council— were to be referred to the Judicial Committee who were to report to His Majesty in Council. By this Act two ex-Judges from India or beyond the seas were also provided for. Further Ecclesiastical appeals were provided for in 1840 (3 and 4 \'ic., c. 86); this act also got rid of an anomah— Ecclesiastical appeals could theretofore have been heard without a single Bishop or Ecclesiastical Judge being upon the Committee— this Act provided that ever>- Archbishop and Bishop of the United Church of England and Ireland who should tx . member of the Privy Council should be a member of the Committee for the hearing of such appeals and one at least be present. Another llcclcsiastical appeal is given in 1874 (37 and 38 Vic, c. 85) and in 1846 (27 and 28 Vic, c. 21) an appeal is given in prize cases. In 1871 (34 and 35 \'ic., c 91) provision was made fur four Judges or ex-Judges of the Courts at Westminster or in India being appointed. Then came the Supreme Court of Judicature Act of 1873, whereby all .Ad- miralty appeals were taken awaj- from the Committee; and in 1876 the pro- vision was made for four Lords of Appeal in ordinary at a salary of £Sooo each to sit in the House of Lords and, if Privy Councillors, also in the Judicial Committee. In 1877, ,ill jurisdiction on the part of the Queen in Council in matters of appeal from Ireland was abolished. In i,Sq5 a ver\' important proWsion was made that any Judge or ex-Judge of the Supreme Court of Canada or any ' V APPENDIX B 351 Superior Court in any Province of Canada, of Australia, New Zealand, Cape of Good Hope or Natal, who should be a Privy Councillor should also be a member of the Judicial Committee. At the present time this Judicial Committee hears appeals in English cases only in Ecclesiastical matters. Upon every appeal of this character, at least three Bishops must sit as assessors, under the provisions of a rile made in 1876. The ultimate appeal in other matters goes to the House of Lords. In Scottish and Irish matters the Committee does not exercise any appellate jurisdiction whatever. After many centuries of se'f-govemment by the Privy Council, Parliament took it in hand to constitute the Judicial Committee itself in 1833 by 3 and 4 Will. IV c. 41 ; the statute directed who should form the Committee, the ap- pointment of a Registrar and generally laid down regulations. Since that time the Judicial Committee has been purely statutory, and the Privy Council has not been in that regard imperium in imperio. Most of the subsequent legislation deals with the constitution of the Judicial Committee and is not of interest to Americans. Those desiring precise information mav look at the Statutes: 7 and 8 Vict., c. 69, s. 9; 14 and 15 Vict. c. 83, s. 16; 39 .id 40 Vict. c. 59, ss. 6, 14; 44 and 45 Vict. c. 3; so and 51 Vict. c. 70, s. 4; 58 and 59 Vict., c. 44; 8 Ed. VTI, c. 51; 3 and 4 Geo. V, c. 21. An interesting account of the Court of Star Chamber, etc., will be found in the Introductions to two volumes of the Selden Society Sena viz: "Select Cases before the King's Council in the Star Chamber, etc.," (1903), Vol. XVI, (i9io'> Vol. XXV, in which the motto vtpl iravrit riv iXfv0(piai> is hon- oured m the observance; Anson's "Law and Custom of the Constitution" has short but accurate references; Lord Eustace Percy's "The Privy Council under the Tudors" is interesting but not helpful for our particular purpose; Wood Kenton's pmmphlet on "The Conditions of Appeal from the Colonies to the Privy Council" is valuable, as of course are Pownall's "Administration of the Colonies;" Macqueen, "Appellate Jurisdiction of the House of Lords and of the Privy Council," and (the second edition of) Bowyer's "Commentaries on the Constitutioral Law of ICnlgand." Dicey 's "The Privy Council" can scarcely be considered worthy of that very eminent legal writer; my own ad- dress before the Missouri Bar Association will be found in the .\merican Law Record for 1900, and no one can ever safely neglect Blackstone. WnjJAU Renwick Riodeu..