A.—4.

232

Ith Day.] Imperial Appeal Court. [12 June, 1911 The LORD CHANCELLOR : The judgment is delivered in the presence of Counsel ? Mr. MALAN: The judgment itself is delivered in public, but the public does not know at all what happens in that Chamber, whether there is a dissentient decision or not, and it is this difference in the character of the court from that of an ordinary law court which is rather objected to in some quarters. As regards South Africa there are a few cases perhaps on record where we would have liked to know something more of what actually took place and how the judges were divided. In ordinary cases Ido not know that there is very much difference. I certainly think, after what the Lord Chancellor has said here to-day, that if the same practice will be followed in the Judicial Committee that is followed in the House of Lords, that difference in character will be removed, and that would be satisfactory. But there is another point, and it is this : the appeal to the King has been one of the connecting links of the Empire, and it is felt that on purely sentimental grounds, altogether apart from the practical, it would be a right thing to have one final court of appeal for the whole Empire, not because it is not working well in practice as we have it now, but, as I said, on purely sentimental grounds. It may be a mere matter of form or a mere matter of name, as the Lord Chancellor points out, still in those things a great deal sometimes depends upon the name, and if it could be found convenient or practicable to have one court of appeal and make two divisions of that same court, then I think the difficulty would be solved. We have that arrangement in South Africa. In our Act of Union, as I explained, we have only one Supreme Court for the whole of South Africa, with different divisions. One division is called the Appellate Division, and then we have the Provincial Division of the Cape of Good Hope, the Provincial Division of the Transvaal, the Provincial Division of Natal, and so on ; but it is one Supreme Court, and the judges are interchangeable. The PRESIDENT : What cases does what you call the Appellate Division take ? Are they cases affecting two of the Provinces ? Mr. MALAN : They take all the appeals from the Provincial divisions. There are three permanent judges of the Court of Appeal, with two assessors. So that the court nominally consists of three, but when there is any necessity to increase the number, two judges from the Supreme Court Bench are added, and they form the court of appeal. If here you could find a name under which to combine the two courts and then have it in two divisions, one division dealing with appeals coming from the United Kingdom and the other division dealing with appeals coming from the Colonies, the Dominions or India, that would give the Lord Chancellor sufficient discretion in constituting his Bench to allow of a Colonial judge or a Dominion judge coming on for Colonial or Dominion cases, without unnecessarily hampering the final court of appeal for the United Kingdom cases. I would therefore suggest, if it could be done, to find one common name for the court of appeal for the whole of the Empire, but to have two divisions of it, one dealing with appeals from the United Kingdom and another one dealing with appeals from the rest of the Empire. Mr. BRODEUR : I may say that as far as Canada is concerned we have never strongly urged any change, and we are generally satisfied with the appeals which are taken to the Privy Council and considered by that court. I must say at first that a change would be rather difficult as far as Canada is concerned, on account of the different Provinces. The Provinces have something to say in the creation of the court, or in the granting of appeals to the Privy Council. Every Province has its own jurisdiction in that matter. By the British North America Act it is provided that each Province has the organization of the courts, and, as a result, it is for each Province to decide whether an appeal shall lie to the Privy Council or not. We have also a Supreme Court, which is a final court of appeal as far as Canada is concerned, and an appeal may lie to that court from the decisions of certain courts of the Provinces. Though it is provided in the Supreme Court Act that no appeal shall lie to the Privy Council, I see by the statements which have been laid before