The Daily News. FRIDAY, MARCH 29, 1901. IMPERIAL COURT OF APPEAL.

Taranaki Daily News, Volume XXXXIII, Issue 58, 29 March 1901, Page 2

The Daily News. FRIDAY, MARCH 29, 1901. IMPERIAL COURT OF APPEAL.

It will be remembered that during the passage of the Commonwealth Enabling Bill through the British Parliament it narrowly escaped being wrecked on the question ef the Imperial Court of Appeal. The British Government insisted on retaining this, and in this the/ were backed up by the New Zealand Government which upon this point made some very strong representations to the Heme Government. Finally en a projaise by the Home Government to make certain modifications to suit the altered circumstances, but maintaining the Imperial character of the Court, the Commonwealth gill passed and the Federation of the Colonies of Australia became an accomplished fact. The questien was revived on the occasion of

" tbe openiiag of Parliaaent by King Edward, who, in his speech, indicated certain reforms or changes to meet the case. The London Times in aa interesting article on the question, which is one of considerable importance to the Colonies, says:— The promise in the King's speech of a measure carrying oat "certain changes in the constitation of the Court of Fical Appeal," which "are rendered necessary in consequence of the increased resort to it which has resulted from the expansion ef the Empire daring £he last two generations," raises hopes that something long deferred and often asked for will at Jast be done. The words which we hare quoted #re not free from ambiguity. Practitioners in the Judicial Committee fail to find just at present much evidence of an increasing rssort to that tribunal. On the contrary, there is a good deal of anxiety among them at the gloomy prospects of business. Ner has there been of late any remarkable expansion of the business coming from the colonies or India. But for the etream of appeals from the Australian coWiea, shs work of tbe Jndicial Committee would be small, and it remains to be seen how far such appeals will be reduced by tbe Commonwealth Coßstitution Act, whieh imposes restrictions which might prove to be serious on tbe right ef appeal. Nor is there any overflow of business in the Souse of Lords. Ireland has long ceased to gend any appreciable number of appeals, and but for the unflagging perseverance of Scotch litigants there would be little for the law lords to do. To give the increase of business as the chief reason for alterations in the constitution of the FinaljjCtmrt is to give a dubious reason whtn an excellent one exists. The growth of the Empire has greatly increased the importance and difficulty of the task which devolves on the Judicial Committee. Let any one examine the cases wniph come before it in a single year, and he will be impressed by the variety and consequence of the questions far determination, Ono of the latest reported eases related to the construction of a will executed in Natal—a case involving consideration ef some obstrcigQ rules of Korean-Dutch law, the opinions of Dutch commentators thereon, and the meaning and true] reading at a "response" given by Papiuiau and qnofced jn the Digest.] Then the Indian cases depend on systems of law or customs altogether alien to those administered here. Owing to the multiplication of protectorates and by reason of the various cases coming from countries in which powers are exercised under the Foreign Jurisdiction Act there arises a class of ques-

tions rarely, if ever, known in formerr days. When the Judical Committee are deliberating, as they were lately whether a section in an Act of the Legislature of British Columbia, intended to exclude Chinamen, or another, also passed by the same Legislature, intended to impose onerous obligations on railway comptnioe, v,m ultra vires, the decision, though important, depended on the British North America Act and the course! of decisions under it. But often they are called upon to determine in the last resort questions as to which a living knowledge of a particular sys'em of law and cf the local effects of a certain decision are essential, It would not be true to say that the Court has in all respects risen to the height of its opportunity. When we think what John Marshall did in a somewhat similar position and what Lwd Kings- , down actually did in the same position as that within the reach to-day of every member of the Judicial Committee witii the requisite learning and amplitude of j vision, '* i' ( P'<"n that is has not of late been to the Empire all it might have been. There ('omea occasionally murmurs from India that it does not give she lead which they have a right to oxpeet. When the High Courts are at issue in regard to a knotty point of Hindoo law, and the Judicial Committee has declared for one of the conflicting opinions, its decision has net always secured the approval of the profession in India; and still eftener there had

been dissiwsfactieu at the timidity ana narrowness of the grounds given for the conclusion. Durisg the discussion of the Australian Commonwealth measure it became plain that there was not entire satisfaction with the final Court of Appeal, As much was admitted when a few years ago certain colonial Chief Justices were made members of the Privy Council. Some of them have sat; and the judgment ' lately delivered be Sir Henry de Villiers in " Gallier v. Rycroft" is evidence of the value of their aid. But this chirge has done little to meet the necessities of the case. The colonial Chief Justices cannot serve two masters; and except on rare occasions they must be where their nominal duties take them. Touching this question lately, Mr. Haldane, in an address which we reported, said: as ours, surely there is room for a great and final arbiter or tribunal chosen not from one locality, but selected from the best brains of the various peoples and various localities which compose that Empire, a tribunal to which appeal might be made in the last resort for the sake of uniformity in great and governing principles. The institution of such a tribunal seems ta grow, almost of necessity, out of our common Constitution." How that tribunal should be formed is a matter as to which lawyers of eminence offered advice. Many favour a ch»ngo which would make thb Judicial Coui-

mittee and the House of Lords in its judicial capacity one great tribunal. The result would be that the present colonial members would sit in, the House of Lords, thus strengthening the legal element and enabling them to be the spokesmen of the communities from which they cam 6. Such a change involves no insuperable constitutional difficulties. Certainly no solution will be satisfactory which does not provide representation for the best judicial elements in the Empire. The ehain binding together all parts of the Empire is a moral tie. There can be no stronger link is that chain than the existence of general confidence in the wisdom of tho Court of Imperial justice. If the matter is to be taken in hand at all, it is hoped that other changes besides those proponed in the constitution of the Court will be made. To name one evil, the delay in giving a decision is annoying to colonial suitors. Still more inexplicable, they think,' are the I disconcerting changes in the arrangements of the Court. They cannot understand why it should adjourn until it has cleared off its list, or why it should postpone its sittings when there are cases ripe for hearing. The present arrangement, according to which a joint judgment is delivered, is open to objections. There is a tradition that on one occasion, in consequence cf thjs rule, the Board actually advised an appeal to be dismissed when all its members wero agreed that the appeal should be allowed; they did so on grounds not merely different bat directly contrary. At «11 events, tke present practice is fruitful it delay, since judgmpnt can be pronounp9d only after much intercommunication between persons not a 1 ways in this country; and, gravest blemish of all, it prevents that large, free discussion and elucidation of princ'ple whereby such a Court may confer the greatest benefit on the whole legal world