THE 1870'S AND LORD CHANCELLOR CAIRNS: THEMIS OF BRITAIN'S EMPIRE

Introduction: The Historical Context of Confederation And The Subsequent Rise of Imperialism

  The dominance Britain had achieved by the 1840's as the world's first and preeminent industrial nation naturally gave birth to the idea that colonies such as those in British North America were unnecessary and even burdensome. Special or exclusive trading arrangements with dependancies could only be impediments in a world where Britain was powerful enough to trade freely and profitably with anyone.

  The separation of the colonies from Britain was increasingly seen there as both desirable and inevitable and this view was commonly expressed throughout the 1850's and 1860's. It was a view shared by Statesmen who voiced their opinions both inside and outside of Parliament. It was view shared also by many leading journals, magazines and newspapers and by officials within the Colonial Office.

  In this climate of opinion and in part as a result of it the Confederation of the British North American colonies was brought to fruition. British North American politicians who visited London at the time found that some British leaders would have been just as happy to see Canada fully independent. Confederation was understood and welcomed by numerous leaders of British opinion as a first step in that direction.

  Yet very shortly after 1867 these views began to change. A feeling of insecurity arose out of the sense that Britain was losing its industrial supremacy. Germany and the United States were gaining in strength and people wondered whether a Britain without its Empire would be strong enough to maintain its global stature.

  William Gladstone's government ran into unexpectedly stiff criticism in 1869 when it refused to continue military assistance for New Zealand and was accused of pursuing a policy which encouraged the separation of colonists. Sensing the emergence of a new attitude toward the colonies the government henceforth became more circumspect. After 1869 British opinion increased steadily that the Empire must be maintained. On June 24, 1872 Benjamin Disraeli delivered an opportune speech at the Crystal Palace which identified his Conservative party with the rising imperialist tide. He tapped into all of the salient themes in the new movement and said there ought to have been, "a military code which should have precisely defined the means and the responsibilities by which the colonies should be defended, and by which, if necessary, this country should call for aid from the colonies themselves." His words were prescient. He also talked, "of reconstructing as much as possible our colonial Empire&ldots;."

  Voices of dissent such as the Times later that same year when it encouraged Canada to become independent, were now adwindling minority. Disraeli took power for the last time in 1874 and by the end of his term of office in 1880 the focus of the new imperialism had shifted from maintenance of the Empire toward the aggressive expansion of it. Prestige, nationalism and jingoism became commingled with imperialism. To paraphrase the nineteenth century Canadian politician Sir Richard Cartwright, a great change had come over the spirit of Britain's dreams.

  Disraeli annexed the Fiji Islands, narrowly averted war with Russia in defence of Turkey, gained control of Cyprus and a shareholding of the Suez Canal and made Queen Victoria the Empress of India. During his tenure the British also took over the Transvaal, invaded Afghanistan and went to war against the Zulu's. A scramble for Africa began which would see the British gain more possessions there than any other European power.

  In the 1880's enthusiasm for the Empire continued to gain momentum as the British fleet bombarded Alexandria and the British army occupied Cairo. The legendary General Charles Gordon, known as 'Chinese' Gordon for his heroic exploits in China, attained near-icon status in Britain when he was martyred at Khartoum. The Empire also claimed a protectorate over Buchuanaland, sent gunboats along the Niger River on a punitive expedition and annexed Zululand. It all made for exciting reading back home.

  Passion for the Empire intensified after the celebration of Queen Victoria's Golden Jubilee in 1887 and remained feverish until the end of the century. In that same year the first Colonial Conference was held at the urging of the Imperial Federation League which had been founded three years earlier. Expansionism was the prevailing political culture of the 1890's. The passion or 'sentiment' as the British would have called it reached its apogee and climax in 1897 at Queen Victoria's Diamond Jubilee which was an unrestrained and lavish celebration of the Empire's achievements.

  During these years the British came to believe it was their duty and their right to spread their methods, principles and traditions around the world. James Morris has stated in his affectionate history of the British Empire that, "[a]mong the professionals of the Empire, and among the governing classes in general, whatever their policies, this imperial duty became as obvious as patriotism itself." Of the Judicial Committee he wrote:

Nothing was more properly romantic, in the complex structure of the Pax Britannica, than the existence of this tremendous tribunal, perhaps the one imperial institution that smacked authentically of the Ceasars. The laws of half a dozen conquered civilizations were laid before it, and its members must interpret them both by their own values, and the values of the imperial British.

  The decisions of the Judicial Committee weakening Canada's federal government and strengthening its provinces during the 1880's and more so during the 1890's fit well with Disraeli's prescription of reconstructing as much as possible the colonial Empire. In Canada's case, the provinces were the colonies prior to 1867 and the federal government could only get in the way of the imperial government's relations with them; an unnecessary fifth wheel on the coach of genuine imperial federation was the metaphor used by A.R.M. Lower to describe how some British law lords may have perceived the federal government during this new imperialist era.

  Lower's reference to a fifth wheel was an adaptation of what Christopher Dunkin had said in the Confederation Debates of 1865. Dunkin, like Sir John A. Macdonald, was opposed to anything which weakened the connection to the mother country because that alliance was Canada's only real defence to the United States. Dunkin was opposed to Confederation for this reason and said it was absurd to establish a new government between the imperial and provincial governments. He said that what was needed was imperial federation not a mere sub-federation of the provinces which he viewed as a step in the wrong direction toward separation. What he wanted to see was better communication between the imperial government and the provincial governments in order to, "develop the Imperial phase, so to speak, of our provincial system&ldots;", not a federal government which would encroach on the functions of the governments above it and below it. His perception in 1865 of the proposed federal government as an obstruction to imperial unity undermines the suggestion that members of the Judicial Committee could not have concluded likewise in later years. Dunkin's imperialism presaged by only a few years the imperialism which would sweep Britain. In Donald Creighton's words: "With a rapidity which left the colonies dizzy and breathless, Great Britain passed from the novel conviction that she must keep her surviving colonies to the inspired reflection that she could federate the entire empire&ldots;. The early Victorians, who had recalled the legions, broken the mercantile system, and conceded responsible government, were now succeeded by the late Victorians who hoped to establish a common system of imperial defence, who aspired to tighten the commercial relations and the political unity of the empire." To this we can easily add the legal unity of the Empire and the hegemony of 'the one imperial institution that smacked authentically of the Ceasars': the Judicial Committee of the Privy Council. And the one individual most responsible for preserving the Judicial Committee as Canada's final court of appeal was undoubtedly Lord Cairns.

 The Rise of Lord Cairns

  Hugh McCalmont Cairns was born in Ireland in 1819. He graduated from Trinity College in Dublin in 1838 where he studied classics and was destined for a career in the church until one of his religious instructors spotted his talent and persuaded his father to send him to the bar. Cairns was admitted to Lincoln's Inn in 1841 and studied pleadings with Chitty. He also spent some time at Middle Temple and from there received his call in 1844.

He met with success early as a lawyer and in 1852 began a political career with his election to Parliament as the Conservative member for Belfast. He was appointed Solicitor General in Lord Derby's second ministry which came into office in 1858. Though young, Cairns was valued for his sharp legal mind and recognized as one of the Conservative party's chief assets.

On May 14, 1858 he established his reputation as a Parliamentarian. The opportunity arose from British efforts to restore order in India after the mutiny of the previous year. The severity of Britain's repression of the mutiny showed amply that whatever they felt regarding their colonial Empire at that time the British meant to keep India. Opinion was divided though on whether a vindictive policy should be pursued against those Indians who had not remained loyal to Britain. On a related point of controversy Cairns defended the government's position in the House of Commons with a speech which Disraeli felt was the greatest he had heard during his twenty years in the House. Cairns said in part:

You make war with Kings and Governments, but not with individuals&ldots;.[E]very individual is entitled to protection of life and property from the victorious nation&ldots;.Tell&ldots;the people of India that you desire submission, and not spoliation - that the war we wage is the war of nations and not the war of freebooters - that England knows how to treat those who are conquered - that she offers to those who are conquered and who submit to her arms that protection for their lives and property which will be the best earnest to them of the mildness of the rule which the fate of battles has assigned to them.

  It can be taken from this passage, rightly, that Cairns ardently supported Britain's imperial position in the world. When the Conservatives returned to opposition he assisted Disraeli in Parliament and also kept himself busy doing Irish and Scottish appeal work in the House of Lords and ecclesiastical cases before the Judicial Committee. He continued his steady ascent when in 1866 Lord Derby, Prime Minister again for a third and final time, named him Attorney General. He remained in this post for only four months before being appointed a Lord Justice of Appeal and receiving a peerage. He was henceforth known as Lord Cairns until he was created an Earl in 1878. His removal from the House of Commons to the House of Lords was mourned by Disraeli, who was the leader of the Conservatives in the House of Commons at this time, as a, "great blow for the party.&ldots;" and, "an irreparable loss&ldots; [which] falls with peculiar severity on myself, for in debate he was my right arm."

  But by the next year Lord Cairns had resumed his political activity and played a leading role in pushing through Parliament the 1867 Franchise Bill which established Disraeli's claim to lead the next government. Lord Cairns also decided a number of important cases in the House of Lords during this period as a Lord Justice, the most notable being Rylands v. Fletcher, [1868] ALL E.R. 1. For the nine months of Disraeli's first government Lord Cairns served as his Lord Chancellor: the Lord Chancellor being a member of the cabinet, the Speaker of the House of Lords and the chief judicial officer of Britain with the power both of appointing judges and assembling panels of judges to hear appeals in the Judicial Committee and the House of Lords; a blend of politician, lawyer and judge who could direct government policy and personally decide cases on appeal.

  After Disraeli's first government came to an end in late 1868 Lord Cairns led the opposition Conservatives in the House of Lords until 1874 when Disraeli again became Prime Minister and Lord Cairns returned to the woolsack.

  Aside from Disraeli himself Lord Cairns was the most prominent and capable member of the Conservative government which Britain elected in 1874. The extent of his involvement in political affairs prevented him from sitting on any Canadian constitutional appeals personally, making him one of only two Lord Chancellors not to do so. His correspondence with Disraeli in the 1870's reveals a preoccupation with foreign affairs and by 1878 the government's foreign policy was guided by an informal committee of three: Cairns, Disraeli and the Marquis of Salisbury.

  Cases dealing with the construction and interpretation of the British North America Act, 1867 as it was then known, began making their way to the Judicial Committee in the mid 1870's and of the roughly half dozen opinions rendered during Cairns' Lord Chancellorship none were controversial in the way they read the Act.

  For example, on July 8, 1874 Lord Selborne gave the opinion of the Judicial Committee in L'Union St. Jacques De Montreal v. Dame Julie Belisle (1874), 6 A.C. 31 at 35, and assumed without deciding the point that all matters not mentioned in section 92 and not of a merely local or private nature were reserved for the exclusive legislation of Canada's Parliament under section 91. This was in accord with the plain meaning of the Act. Lord Selborne was also careful not to exclude the possibility that the Canadian Parliament, because of the concluding words in section 91, was competent to exercise its section 91 powers in matters of a merely local or private nature. The Canadian Parliament in other words was free to occupy the field with legislation of its own although it had not done so in that particular case. He returned to the subject in Valin v. Langlois (1879), 5 A.C.115 at 120, and said: "&ldots;that which is excluded by the 91st section from the jurisdiction of the Dominion Parliament is not anything else than matters coming within the classes of subjects assigned exclusively to the Legislatures of the provinces."

  It certainly does not seem, therefore, that Lord Cairns viewed Canadian constitutional appeals as opportunities to rewrite the British North America Act. His non-attendance on Canadian constitutional appeals undermines any such suggestion. Rather, his concern was that colonial appeals continue to be heard by the Judicial Committee because they were for him the most important link keeping the Empire together. His views became evident to Canadians the following year, 1875, when Canada attempted to terminate appeals to the Judicial Committee.

  The occasion was the creation of the Supreme Court of Canada. The various legislative attempts to establish a new court began as early as 1869 and raised issues on which Canadian politicians were ambivalent both as related to the court itself and the appeal to the Judicial Committee. However, this ambivalence did not shape the formation of Lord Cairns' views on the question of the appeal. He had expressed his well-formed views on this subject a number of times already. It has been suggested that disagreement among Canadians on whether to terminate or continue appeals to the Judicial Committee encouraged the Colonial Office to oppose termination of appeals. There is ample ground on which to doubt this suggestion. R.G.W. Herbert, the permanent under-secretary of the Colonial Office, was sympathetic to the Canadian dislike of the appeal to the Judicial Committee and every bit as willing as Lord Carnarvon, the Colonial Secretary, to accommodate the Canadian position. Their correspondence is clear that it was the intransigence of Lord Chancellor Cairns which was the stumbling block.

Canadian Discussion of the Idea of Limiting or Removing the Appeal to the Judicial Committee

  After Sir John A. Macdonald introduced his Bill in the Canadian House of Commons to establish a Supreme Court for the Dominion of Canada his office distributed copies of the Bill to various persons including judges and members of the legal community with the request that they provide their remarks as to how the Bill might be improved. Some of the responses suggested restricting or abolishing appeals to the Judicial Committee. He received a letter from a Montreal Judge, Charles Mondelet, on June 8, 1869 who made several comments on various aspects of the proposed legislation and asked: "Is there to be an appeal to England as a matter of right, in all cases, or should not the right of appeal be restricted, v.q. [sic] 'no appeal shall be allowed to England, unless granted by the Privy Council, on application.&ldots;'" Mondelet's decision in the Guibord case was similar in result to the later Judicial Committee decision which helped to break down opposition in Quebec to the proposed Supreme Court.

  W.J. Ritchie, the Chief of Justice of New Brunswick and later one of the original appointees to the Supreme Court, produced a twenty-four page pamphlet on February 1, 1870 called, "Observations of the Chief Justice of New Brunswick on a Bill entitled 'An Act To Establish A Supreme Court For The Dominion of Canada'". He felt that resort should only be had to the Judicial Committee in very exceptional cases in which questions of a national character were involved. He continued:

 Does it not sound very like a reproach to our Dominion to say that there is not sufficient legal talent within its boundaries to decide finally the legal rights of the parties in all ordinary suits? Does it not ignore the principle so largely conceded that we are fit for local self-government?

To say we are competent to legislate on all matters affecting the interests of the People of the Dominion, and yet incompetent to decide what those laws are, and what are the rights of the people thereunder, seems to involve a contradiction not easily to be reconciled. Apart, however, from this, the delay, expense, and inconvenience attending the practical working of such an Appeal, seem to be sufficient objections to justify its discontinuance. No doubt it will be said that this would be an interference with the Royal Prerogative. But I should think there could be no doubt, that if it was for the interest of the Dominion that appeals to the Privy Council should be abolished or limited, the principle, as it has been heretofore, would be readily conceded.

  In this latter assumption he would be proven wrong as a result of the obstinacy and deviousness of Lord Cairns. Equally sanguine and equally wrong was James Bethune, Liberal member for Stormont, who stated in the Ontario Legislative Assembly on March 5, 1873 that, "[n]othing would be easier than for the Parliaments at Ottawa and here to request the Imperial Government to pass an Act amending the British North America Act, enabling any matter in dispute to be argued before our Court of Appeal."

  Macdonald received letters which referred to decisions of the Judicial Committee allowing colonial legislatures to limit appeals. One of the letters was from Ontario Chief Justice William Buell Richards, later the first Chief of Justice of Canada, who wrote on March 15, 1870 that, "[t]he power of the Local Legislatures to limit the right of appeal and in some cases to prohibit it has I think been recognized in some of the recent decisions in the Judicial Committee of the Privy Council." He was likely referring to Regina v. Bertrand (1867), 1 L.R. 520 and Falkland Islands Company v. The Queen (1863), 15 E.R. 713, which recognized that the royal Prerogative could be limited by charter or statute. These cases were consistent with the earlier authoritative case of Cuviller v. Aylwin (1832), 2 Knapp's P.C. Cases, 72; 12 E.R. 406; [1832] Stuart's Reports 527. The latter case allowed colonial legislatures acting with the approval of the British Parliament to prohibit appeals where the sum in dispute was less than 500. The principle of local legislatures recognized by the British Parliament acting to restrict appeals to the Judicial Committee was also recognized in R. v. Eduljee Byramjee (1846), 5 Moore P.C. 294; 13 E.R. 496.

  On March 18 Macdonald introduced a new Bill entitled, "An Act to Establish a Supreme Court of Canada." John H. Cameron, a Member of Parliament for Ontario, raised the issue of appeals to the Judicial Committee for the first time in the Canadian House of Commons. He wanted to know whether the Government was going to, "ask for the repeal of the Imperial Statute, by which appeal to England is now made? Whether the judgment of the Supreme Court here is final or whether a case is still liable to be taken across the Atlantic to the Privy Council?"

  Macdonald answered that they had no power to deprive a British subject of the right of going to the foot of the Throne for redress, and added that he would be sorry to see that power abdicated. In Macdonald's view as he expressed it on later occasions the value of preserving all the elements of Canada's connection with Great Britain lay in the protection it afforded Canada vis-à-vis an expansionist United States. For this reason he gave preservation of the appeal to the Judicial Committee the same priority as did Lord Cairns. Nevertheless Macdonald's new Bill required appellants to seek leave from the Supreme Court in order to appeal to the Judicial Committee with the proviso that nothing could take away from the undoubted right of the Judicial Committee to grant leave to hear appeals involving constitutional questions, or matters of great public importance, etcetera. It also provided that the Supreme Court's judgments would be final in all criminal appeals.

  Edward Blake, the prominent reform (Liberal) M.P., rose to ask, "whether a man can appeal directly from the ultimate Court of Appeal in his own province to the Privy Council, or is he obliged to go through the Supreme Court." Macdonald said that it was not obligatory to come to the Supreme Court and that appeals could go directly to the Privy Council. Apparently, so wary were members of Canada's Parliament about the rights of the provinces that Macdonald dared not, nor was he even inclined to, deprive the provinces of appeals directly to the Judicial Committee. Nor did he seem cognizant of the tremendous harm this would cause the Supreme Court of Canada in terms of diminished prestige and significance. The Bill was then put over for second reading.

  The Red River uprising led by Louis Riel, which had dominated the parliamentary session of 1870, absorbed Macdonald's attention for the rest of March as did another attack by the Fenians expected in April. He had time to introduce a Bill for the creation of the province of Manitoba and arrange a military expedition force in order to deal with the crisis but then fell seriously ill on May 6. He lay sick and immobile on the floor of his office for the rest of May and was not expected to live. On May 11, Sir George Cartier gave the House a report on the condition of Macdonald's health. He also moved the discharge of the Supreme Court Bill and other matters so that the session could be ended the following day. Macdonald's close brush with death killed any chance of the second Supreme Court Bill becoming law. It seems apparent though that the biggest obstacle to establishing a Supreme Court was Quebec's concern that only a minority of the judges on the Court would be familiar with that province's civil law system. Macdonald later stated in the House of Commons: "On two occasions I brought in a Supreme Court Bill, but after the measures were laid on the table for discussion, the objections raised against it from the province of Quebec, the extreme difficulty of constituting a tribunal that would meet the case of Quebec, which has a separate system of law and organization, and added to that the difficulty arising from difference of language, these difficulties were so great that they deterred me, and the Government of which I was a member, from legislative action on the matter." Indeed it would take a change of government and almost five more years before another Supreme Court Bill would be introduced.

Lord Cairns' Opinion that the Appeal to the Judicial Committee Was Crucial to the Empire

  That summer on July 1, 1870 Lord Cairns had an opportunity to express his views on the Judicial Committee of the Privy Council during debate in the House of Lords in England. He referred to the arrears of cases which had yet to be heard and the damage this might cause to the opinion of the colonies toward the Judicial Committee. He also alluded to the neglect of and lack of interest in the Colonies shown by Gladstone's government. But most importantly, he articulated the political significance as he saw it for Britain's Empire of colonial appeals to the Judicial Committee:

The matter [ie. the backlog of cases in the Judicial Committee] is of the more importance because, owing to the line which our colonial policy has taken during late years - as to the propriety of which I should not now attempt to give an opinion - it has come to pass that one of the most real and tangible points of connection between the mother country and the Colonies remaining unsevered is the right of the Colonies to bring their judicial proceedings by way of review before Her Majesty in Council; and that is a right which is deeply appreciated by the Colonies at present, and which they will be sorry to surrender, but which they will be bound to surrender if they believe that it has become a mockery and a delusion. (emphasis added)

  At this time some retired judges such as Sir James Colvile had been sitting on the Judicial Committee without receiving any compensation, and hearings occurred only for a few weeks each year. Lord Cairns proposed giving adequate salaries to all of the judges so that hearings would be held constantly, "like any other Court.&ldots;" I quote these words because everyone treated the Judicial Committee as a court but on some occasions arguments would be expediently made by Lord Cairns as well as others that it was rather a committee empowered to give a report or recommendation to "His Majesty" who would then give final judgment. In practical effect the report of the Judicial Committee was the final judgment. It was required by the Judicial Committee's founding statute to be, "&ldots;always stated in open court." (emphasis added). In Singapore v. Hebe (1866), 1 L.R. 378 at 388, Sir William Erle speaking on behalf of the Judicial Committee referred to it as a court nearly a dozen times in his reasons for judgment including the following: "this... is a Supreme Court of final appeal...." Lord Justice Cairns was a member of the panel on that occasion.

  A Memorandum of the Lords of the council in 1870 referred to the Privy Council (Judicial Committee) in its capacity of reviewing the decisions of the colonial courts as, "a Court of Appeal&ldots;." (1870), 16 E.R. 827 at 829. The Memorandum was approved of by Lord Chelmsford, Dr. Lushington, and Sir Edward Ryan, all of whom were prominent members of the Judicial Committee. Numerous judgments from the 1830's and 40's contained references to it as a court including those delivered by Lord Brougham, Lord Campbell, Lord Wynford, and Baron Parke. The Judicial Committee's predecessor, the Appeals Committee of the Privy Council, was generally referred to as a court as well.

  Furthermore, the Judicial Committee's function was wholly judicial with specified rules of evidence and procedure. It had the powers of any English court regarding witnesses and could punish for contempt. It could be composed only of persons of high judicial qualification. Finally, its function was to hear appeals or applications in legal suits and proceedings primarily from Britain's possessions abroad. So the Judicial Committee was a court in all but name and it was casuistry to argue otherwise. As will be seen in the case of Canada, the argument that the Judicial Committee was not a court was used by Lord Cairns to interpret s.47 of Canada's Supreme Court Act as not applying to the Judicial Committee with the result that appeals would continue flowing to England.

  The next year on June 15, 1871, The House of Lords debated the appellate jurisdiction of the Privy Council (ie. the Judicial Committee) and Lord Cairns said more to reveal the political conception he had of its role. Particularly he lamented the development of courts of final appeal in the colonies as destructive to the Empire and symptomatic again of delays and backlogs in the caseload of the Judicial Committee:

Their Lordships, however, are now asked to protect the colonists and the people of India, who are not able to make their complaints known except through the newspapers, and are, therefore, driven to agitate in their own countries for the establishment of a Court of Final Appeal in each particular colony - a step which will destroy one of the most valuable links that connects this country and her colonies - namely, the drawing [of] their sources of law from the courts of England. (emphasis added).

  The inefficiencies of appealing to the Judicial Committee unquestionably created a desire for alternatives but so did the natural growth of colonial autonomy. The subsequent creation of the Supreme Court of Canada, for example, was an expression of self-development. Lord Cairns seemed oblivious to this but the most important point here, again, is that he viewed a court of final appeal in a colony as antithetical to imperial interests.

  The following year, on April 15, 1872, Lord Cairns returned to the subject of appeals, this time in the context of a debate on Lord Chancellor Hatherley's Supreme Court of Appeal Bill. The Lord Chancellor felt it would be expedient to establish one "Imperial Supreme Court of Appeal" which would sit continuously and replace the House of Lords and the Judicial Committee.

  Lord Cairns was strongly opposed and said:

At present the colonies, by their very constitution as colonies, have an appeal to the Queen in Council, which is disposed of on the advice of the Judicial Committee, and I believe they are satisfied with that tribunal, which stands extremely high with them. My noble and learned Friend may think it is a sham and a form for her Majesty to pronounce judgment upon the advice of Her Privy Council; but, for myself, I view it as one of much importance as regards India and the Colonies. Our Colonies take pride in the fact that they derive their law, not from an English Court, but from the actual Order of the Sovereign in Council, and to do away with this would destroy one of the links which most closely bind them to us.

  His passionate defence of the old forms of appeal is difficult to reconcile with the fact that it was a royal commission on the judicature under his own chairmanship in 1869 which had first recommended an overhauling of the appeal system and in particular that a single new appeal court should be established. His comments are all the more puzzling given that when Hatherley's successor, Lord Chancellor Selborne, introduced similar legislation with the intention of transferring Judicial Committee appeals to a new Court of Appeal Lord Cairns approved of it. The legislation after all, largely followed the recommendations of his royal commission report. And one must question whether he was merely playing the sophist in light of his subsequent conduct: when he resumed the Lord Chancellorship in 1874 he too introduced a Bill section 11 of which provided for the transfer of Judicial Committee appeals to an, "Imperial Court of Appeal" with more comprehensive jurisdiction than all previous Bills had allowed for. His championing of the new court made him the foe of those in England who sought to preserve the existing appeal structure. When his Bill failed he then reintroduced Lord Selborne's legislation and attempted to push it through until opposition to it also became too great.

  On April 30, 1872, he pointed out that the new court proposed by Lord Chancellor Hatherley could be composed of three barristers of ten years' standing, far less impressive than the 'Imperial tribunal' they had now:

[I]f you take three barristers of 10 years' standing and shut them up in a room, there is nothing to connect them with any distant part of the Empire. Now let us turn to the Colonies - for we have colonies governed by every system of law under the sun - by Civil, Dutch, Roman, and French law. We have free colonies - colonies with free institutions, and colonies without; we have colonies that we have become possessed of by cession, others that we have got by conquest, and others that we have made ours by colonization. Every one of them, either by charter, custom, or constitution, has become possessed of a system of law by which their appeals are to the Sovereign in Council. They admit that jurisdiction, they are willing to abide by the Orders made by the Queen in Council; but if you alter this - if by violent legislation you take their appeals away from an Imperial tribunal and send them to a tribunal which may be composed of three Barristers of 10 years' standing, I want to know is that a policy which will give confidence to the colonies and strengthen the connection between them and the mother country? Have the colonies objected to the present system? Have the colonies been consulted on the change you propose to make?

  Lord Cairns had referred a number of times to the support of the colonies for the Judicial Committee and questioned whether they had ever objected to the existing system of appeals. In fact, only a few years earlier Bishop Gray of Capetown in Africa had campaigned against the Judicial Committee's ecclesiastical jurisdiction. And, Strachan Bethune, Chancellor of the diocese at Montreal, had stated as follows on November 24, 1866: "The delay and expense incident to any Appeal to an authority in England are sufficient of themselves to preclude the desirability of any such appeal."

  Dr. John Medley, the Bishop of Fredericton, wrote on December 29 that, "Colonial Churchmen would &ldots; not unwisely come to the conclusion, that they would obtain more satisfaction, by a settlement of their disputes within their own boundaries&ldots;." On January 14, 1867 Bishop Hibbert Binney of Nova Scotia wrote that, "such an appeal must always be a denial of justice, except in a few special cases, for neither Bishops nor clergymen can bear the great expense&ldots;." The Archbishop of Canterbury speaking on March 22 read aloud in the House of Lords a letter from New Zealand regarding the Judicial Committee's jurisdiction:

A Court of Appeal so distant would, I conceive be worse than worthless, and would be utterly beyond the reach of the poor man. It would, therefore, be a court of appeal only for the rich; while it would clearly imply that we in the colonies are not worthy of being trusted in the management of our own affairs.

  Perhaps Lord Cairns was not aware of some of these opinions solicited by the Bishop of London in an unsuccessful effort to reassert the Church of England's control of its colonial branches. At any rate Lord Cairns' actions in 1875 would demonstrate that his real concern was for the benefit derived by Britain from the maintenance of appeals and rightly so, given his membership in the British government. That colonists might be in favour of appeals was only useful rhetoric in the House of Lords; there were many colonists on both sides of this question, as the Canadian House of Commons Debates of 1875 amply demonstrate.

1875: The Creation of the Supreme Court of Canada and the Attempt to Make it Canada's Final Court of Appeal

  In Canada by 1875 Alexander MacKenzie was prime minister. Finally a Supreme Court Bill was introduced in the House of Commons which would become law. When the Bill was introduced, Telesphore Fournier who was Justice Minister at the time and later would be one of the original six appointees to the Supreme Court, said that he would like to see the appeal to the Judicial Committee ended. But there was nothing in his Bill which would do so.

  Ontario M.P. Aemilius Irving seemed to be the only person in the House at this point in time who could see that it was a fatal flaw to not compel appellants from provincial courts to go to the Supreme Court before going to the Judicial Committee in England. He proposed abolishing appeals from provincial courts directly to the Judicial Committee. His goal was to build up the Supreme Court in the strongest way possible and he twice moved amendments to the Supreme Court Bill which would require provincial appeals to first go to the Supreme Court but was defeated both times. On the first occasion, when the House was in committee, Fournier spoke in opposition to the amendment and said that it would necessitate abrogating provincial laws and he was not prepared to deal with the question. He added that it might be a question for the Supreme Court to decide whether Parliament could make such a change.

  Macdonald also was opposed and felt that the House had no jurisdiction to terminate appeals to the Judicial Committee from the provincial courts of appeal because to do so would have been an interference with the royal prerogative, or at the least with Imperial legislation. On the last occasion, which was during the third reading of the Bill, Irving's amendment was simply voted on and lost without further discussion.

  That same day, March 30, Irving moved another amendment which Fournier was willing to adopt. It provided that the judgment of the Supreme Court of Canada would be final and that no appeals could be brought from it to any court of appeal established by the Parliament of Great Britain, except that the Crown might grant a right of appeal by virtue of its royal prerogative. Commentators seem unanimous in interpreting Irving's use of the words, "&ldots;any Court of Appeal established by the Parliament of Great Britain&ldots;" contained in the middle part of his amending clause as a direct reference to that Court of Appeal which Lord Selborne in England had proposed would replace the House of Lords and the Judicial Committee in the hearing of all appeals for Britain and the Empire. Of course, this would be Lord Cairns' interpretation as well with a view to preserving appeals to England. It is apparent though that Irving meant these words to include not only Selborne's court (if at all) but especially the Judicial Committee because earlier in the month on March 16 when he had declared his intention to prepare his amendments to the Bill he explicitly referred to, "&ldots;the Appeal Court in the sense of the Judicial Committee of the Privy Council." (emphasis added). Furthermore, Lord Selborne's proposed Court of Appeal was already dead because Lord Cairns himself had withdrawn the Bill from the British Parliament back on March 8. Irving was right that the Judicial Committee was a court of appeal established by the Parliament of Great Britain, though Lord Cairns would resort to the fiction that it was not a court at all.

  Had Lord Cairns been as disinterested in the Empire as were British statesmen at the time of Confederation only eight years earlier, he would not have quibbled over nomenclature but he was an ardent imperialist and he did not want Canada's Supreme Court to replace the Judicial Committee as the final court of appeal for Canada.

  By terminating appeals to the Judicial Committee Irving should have succeeded in making Canada's Supreme Court the final court of appeal because section III of the Judicial Committee's founding statute, 3 & 4 William c.41., 1833, provided that all appeals which by law, statute, or custom could be brought before His Majesty or His Majesty in council were to be henceforward referred to the Judicial Committee. So there was, after August 14, 1833, no separate avenue for appeals by way of the sovereign's prerogative apart from the Judicial Committee and Lord Cairns would later draft a memo asserting this very point. The right of appeal to the foot of the Throne, in Macdonald's phrase was illusory by 1875. Because Irving was wrong in thinking that an appeal could still be made to the Crown apart from the Judicial Committee, the final part of his clause (later known as clause 47, or section 47) which attempted to preserve appeals by virtue of the royal prerogative was meaningless. It had been included because severing the monarchical link was unthinkable even for Irving; as a symbol the monarchy was unassailable. However, Lord Cairns, as will be seen, came to favour another interpretation which gave an operative definition to this part of the clause.

  Another problem arose from the acceptance of Irving's amendment and the rejection of his earlier amendments which had as their object the termination of appeals to the Judicial Committee directly from provincial courts. As George Kirkpatrick, an Ontario M.P., said: "This amendment will prohibit appeals to the Privy Council from the Supreme Court [so he thought], but permit them from the Provincial Courts. The result will be that appeals will be taken direct from the Provincial Courts to the Privy Council, and the Supreme Court will be passed by."

  Many dimensions of the issues raised by Irving were debated by the House. Macdonald said that this amendment was the first step toward the severance of Canada from Britain or in his words, "of the Dominion from the Mother Country." He felt sure that the Supreme Court Bill would as a result be disallowed by Britain and after Irving's amendment was voted on and passed he referred to the colonial connection as a golden chain. Joseph-Edouard Cauchon of Quebec complained of the style of the connection: "We have received too many despatches [from Britain], as if we were only children and did not know how to deal with our own affairs." He also said the appeal to the Judicial Committee should be abolished because of its expense, a sentiment which many other members echoed because it, "affords the rich man the means of oppressing the poor man.&ldots;" James Young of Ontario believed that, "our own judges are in a better position to administer justice to our people than men three thousand miles away." He also referred to Macdonald's mingling of the amendment with the fear of weakening the imperial connection as a, "cuckoo cry". No one wanted to see the connection weakened. The point of contention was whether doing away with appeals to the Judicial Committee would have that effect.

  A.L. Palmer of New Brunswick was lucid in his assessment of the situation. He said that he would like to see questions of law decided finally in Canada and would do everything in his power to bring that about. Unfortunately, in his opinion, this amendment was brought forward hastily and belatedly and without sufficient thought. He doubted whether Canada could pass such an amendment given the legislation of the Imperial Parliament already in place. Displaying a better understanding of power than anybody he said: "I apprehend that so long as Great Britain occupies its present position towards Canada that the Imperial authorities must decide with respect to legislation between an attempt of the Federal Parliament to breach upon the rights secured to the people of the respective Provinces, and also when the Local Legislatures seek to exercise powers that belong to the Federal Parliament."

  Thomas Moss from Ontario defended Irving's amendment thus: "if the suitor chooses, he can go directly to the Privy Council, because he has the right of appeal from the highest court in the province; but if he does not choose to go to the Privy Council, but prefers to go before the Judges of our own Supreme Court, he cannot complain that by an Act of Parliament he is prevented from going further". His comments reflected the general intent of the House which would later be thwarted by Lord Cairns.

  Prime Minister Mackenzie spoke last before the vote on the amendment. He said:

I have heard several members of the bar in the course of the debate express their opinion that appeals to the Imperial Court at present are of comparatively little use from the want of knowledge on the part of the Judges, particularly in reference to the laws of Lower Canada. I have heard the opinion expressed by the highest legal authorities in the House that suitors presenting such appeals would have a much better chance of justice in our Supreme Court than in an English one&ldots; we must now be prepared to judge for ourselves what will suit our people best, so long as we do not trespass on any Imperial right, or deprive HER MAJESTY'S subjects in this country of a final resort to HER MAJESTY'S highest court."

  Mackenzie had to persuade the Marquess of Dufferin, Canada's Governor-General, to assent to the Bill. Dufferin had some initial hesitation as to whether the measure was within the competence of the Canadian Parliament. It was then sent to Britain for review accompanied by a memorandum in support of it which MacKenzie had written. At this time Charles Henry Gordon-Lennox, the Sixth Duke of Richmond, who had been President of the Board of Trade in Disraeli's first government, was Lord President of the Council and the leader of the House of Lords. Only three months earlier on March 4, 1875 he had hosted a meeting of peers with the intention of opposing any new court which would take away the appeal function of the House of Lords. Now he voiced his concern over the effect the Canadian Supreme and Exchequer Court Act would have on the Judicial constitution of the Empire. For the next few months debate would continue within the British bureaucracy over the validity of the Act.

Lord Cairns Moves To Preserve the Imperial Appeal

  During a trip to London in the summer Mackenzie learned from Lord Carnarvon, Disraeli's colonial secretary, that objections had been made to the Supreme and Exchequer Court Act and that disallowance was being considered. Edward Blake, Mackenzie's Minister of Justice, sent off a supportive memorandum in October. The memo came to Lord Cairns' attention in early November. Cairns then wrote to Lord Carnarvon on November 2 the following letter:

My Dear Carnarvon

  I venture to hope you will not decide on the Canadian Appeal [Question] without further consideration. What is desired appears to me to be equivalent to a complete severance of the strongest tie [between] our Colonies and the Mother Country. The Minister of Justice's [memorandum] is a mass of inaccuracy and bad reasoning. It may be summed up in one proposition: Canada had a power given her to regulate appeals: Ergo she may enact that there shall be no appeals whatever.!.

  I must think at all events you will think it a matter sufficiently grave to bring before the Cabinet.

  I am reading the N. Guinia papers and will confer with you as to them on Thursday.

  Believe me

  Sincerely yours

  Cairns

  Richard Cartwright, Mackenzie's Minister of Finance, was in London on business and arranged to meet with Lord Carnarvon who seemed very supportive. It was Lord Chancellor Cairns who raised the difficulties. Cartwright told Blake in a letter that: "So far as I can make out several of them [the objections to the Act] are of a technical sort and regard the wording of the Act rather than the spirit, but there is undoubtedly a feeling against it besides&ldots;. It is not easy to disregard the Chancellor and their law officers on such a question." He also relayed that Carnarvon thought Blake should come to London to settle the problem.

  The reality was of course that both the spirit of the Act and its wording were the focuses of concern. Carnarvon wrote to Dufferin on November 4:

I have had your telegram as to Blake and the Supreme Court Act. The question is one of very great difficulty. Cairns' opinion is dead against the Act & he says that the saving clause as to the Queen's prerogative in clause [47] is waste paper. I am going again very fully and closely into the matter but I see that his opinion is extremely decided: and the only satisfactory solution that suggests itself to me is a conference between Mr. Blake, who as Minister of Justice and as mainly interested in this particular question can most effectually state the views of your Government, and the Chancellor & myself. Is this possible? If so it is most desirable: for the subject is of very great importance and worthy of a considerable effort in order to secure a settlement satisfactory to all parties. I have spoken privately to Mr. Cartwright, as one of Mr. Blake's colleagues, and I think I may say that he would consider such a conference as extremely desirable if it can possibly be reconciled with the exigencies of public business.

  On November 11 Dufferin wrote as follows:

I don't think myself that Mackenzie cares so very much about the clause, and it must always be remembered that it was not a part of the original measure introduced by my Government, but was suggested during the course of the third reading by an independent member, still Mackenzie insists that without the clause he could not have got the Bill through Parliament at all, and that the French members, as well as the majority of the Senate, intimated to him that it was only on condition of its insertion that they would allow the proposed Act to pass. With Mackenzie therefore, the insertion of the clause is a mere question of party tactics. With Blake it is different, - he seems to me to have a morbid hatred of the legal authority of England, engendered probably by the frequency with which it has over-ruled his own opinions and decisions in respect of points of Constitutional Law.

 My own opinion is that if you think [it]desirable to insist upon the appeal to the Queen's P.C. [Judicial Committee of the Privy Council] being retained, Blake would not be able to work up any excitement in the country on the subject, though of course it is difficult for me to gauge the popular sentiment on such a point. In Ontario the number of appeals to the Privy Council during the past dozen years have been very few. From Quebec they have been more numerous, the French being a more litigious people. Sir John Macdonald in a speech he delivered the other day at Toronto alluded to the cutting off of the right of appeal to the Queen in Council, as the destruction of a link connecting this country with England. I do not myself attach any weight to this consideration. The ties between the Dominion and Great Britain are of a very different nature, and the freer and more independently the machinery of our Government here can be made to act, the less danger of friction or collision. The intervention of the Privy Council in the Guibord case has had a tendency rather to exasperate the French population against England than to cement the connection, and many contingencies can be conceived of a similar nature. On the other hand occasions can be imagined on which an opportunity of a reference home might prove convenient from a public point of view....

 There is however one direction in which it has occurred to me danger might arise. One of the chief functions of the new Supreme Court will be to determine the line of demarcation between the Dominion and the Provincial jurisdictions, and other points of our internal constitutional law. Should a difference of opinion arise between the Canadian government and the Law Officers of the Crown at home, in respect of the limits of the powers and jurisdiction of the Canadian Parliament, as recently in the case of the Oaths Bill, it is possible that the authority of the Supreme Court of Canada might be invoked by a Minister like Blake in support of the Canadian as against the Imperial interpretation of the law, though in an indirect manner. The fact of the Supreme Court of Canada having been invested with a jurisdiction which did not acknowledge any superiority in any Imperial Tribunal would of course strengthen the hands of those who were fighting the Canadian battle.

  If it could be managed I think it would at all events be well to empower the Governor General on behalf of the Queen, to order if he saw fit an appeal to lie to the Privy council against any judgment of the Supreme Court.

  Later Dufferin would again refer to the state of opinion in Canada and specifically the eagerness exhibited by the French members of the House to have clause 47 retained in the Supreme and Exchequer Court Act. Many French Canadians, who initially had been opposed to the creation of the Supreme Court, now wanted to see it as Canada's final court of appeal in light of the decision of the Judicial Committee in the Guibord case which enraged the Roman Catholic church and its supporters in Quebec.

  On November 25 Lord Carnarvon responded:

I have received your letters of 11th & 12th and hope by next mail to write you more fully on the subject. The Chancellor is very keen against the Supreme Court Act: but I hope that I shall be able to send you a fair & reasonable proposal for the amendment of the particular clause which will satisfy him & your ministers. All you tell me of Mackenzie & his language is very satisfactory & even Blake may I hope be induced to take a reasonable view of the case by good management. I personally agree very much with what you say as to the particular value of these appeals in reference to the connection of Canada with England: but I see that in many quarters a much greater - and as it seems to me a somewhat undue - stress is laid upon the judicial bond of union&ldots;.

  Lord Cairns and the Duke of Richmond met in late November and drafted a new clause to be substituted for clause 47 of the Supreme and Exchequer Court Act. It was based on the wording of an earlier New Zealand order in council and it also resembled the wording which Sir John A. Macdonald had used in his draft legislation:

  Clause to be substituted for clause 47 of Canada Appeals Court Act.

And it be further enacted that no appeal from any Judgment Decree Order or Sentence of the said Supreme Court in Appeal to Her Majesty in Council shall be allowed when the sum or matters in dispute does not amount to the value of 5,000$ or does not involve a claim demand or question to or respecting property or any Civil Right to the value of 5,000$ except by permission to be granted at the discretion of the Judges of the said Supreme Court: provided always that nothing in this Act contained shall extend or be construed to extend to take away or abridge the undoubted right and authority of Her Majesty Her heirs and Successors when the humble petition of any person or persons aggrieved by any Judgment Decree Order or Sentence of the said Supreme Court in Appeal to admit on consideration of the particular circumstances of the case his her or their appeal to her Majesty in Council from any Rule judgment Decree Order or Sentence upon such terms and securities limitations restrictions and regulations as her Majesty in Council Her Heirs and Successors shall think fit.

  R.G.W. Herbert, the permanent under-secretary in the Colonial Office, received this clause from the Privy Council Office in early December and then sent it to Dufferin with the following letter which read in part:

Lord Carnarvon has asked me to send you the draft clause suggested in substitution for Section 47 of the Supreme Court Act: and he will write to you himself on the subject.

The draft clause has been sent to us privately in the first instance from the Privy Council office, where the Lord Chancellor & the Lord President had a meeting a short time ago to consider the whole question&ldots;.

I quite agree with you that the new Supreme Court not only ought to be but is adequate for the final administration of justice, in all ordinary cases of appeals as well as in first instance; and I presume it is to be trusted not to permit appeals to England without good cause. It seems however to me (from my non-political point of observation) impossible for H.M. Govt to sanction (if they felt it desirable), an enactment declaring that the appeal to this country on which so much reliance is apparently placed by a variety of interests is summarily cut away. (emphasis added)

However, as I understand that Mr. Mackenzie and his colleagues are satisfied that the clause ought to be amended, I need not trouble you with anything more on this head. I ought, nevertheless, not to omit to mention to you that many members of [the Imperial] Parliament on both sides of the House have, ever since the provisions of sec.47 were known here, been pertinacious in endeavouring to find out from me what is being done respecting it. There can be no doubt that questions will be asked as soon as Parliament meets, and it would, I suppose, be very advantageous to your Ministers if it could be stated in both Houses here that they had readily concurred in a modification of the clause which, while carrying out all of the objects valued in Canada, removes any technical doubts as to the maintenance of some appeal to Her Majesty.&ldots;

An answer to Mr. Blake's memorandum will be sent in due course, as he is entitled to one, even though we may hope that this matter has been arranged.

You will perceive that the Chancellor has introduced towards the end of the draft clause, the words "in consideration of the particular circumstances of the case". This is done expressly in order to shew that an appeal will not be a matter of course, but that good cause must be shewn for desiring to go beyond the Dominion Supreme Court. This, it is hoped, will be appreciated by your ministers as a concession to their views&ldots;.

P.S. if sec. 47 is amended as the Lord Chancellor proposes, or in any similar way, there will still remain what seems to me (& to some much higher authorities) the anomaly that an appeal from the Provincial Court may be carried direct to the Privy Council, giving the "go by" to the Dominion Supreme Court, which will surely thus be deprived of much of the dignity & supremacy which it is the very proper desire of yourself & of the legislature to confer upon it.

If the appeal from the Supreme Court to England is adequately secured, ought not the appeal directly from the Provincial Courts to England, to be abolished.

Possibly this would be objectionable in some respects at the present time, and there may be political or other reasons why some provinces should continue to have their appeal direct to the Privy Council.

But the arrangement is at least theoretically unsymmetrical, and if your Govt should desire to propose that, in consideration of the clear definition of the appeal to the Privy Council from the Supreme Court, appeals should not be from any other court to the Privy Council, I cannot suppose (though pray understand that I have no notion what the Lord Chancellor would say on this point) that H.M. Govt would not entertain such a proposal&ldots;.

  In Canada Blake did not approve of the draft clause prepared by Lord Chancellor Cairns. Carnarvon's correspondence in December 1875 and January 1876 indicated that he was having difficulty in moving Cairns from his position on the issue. By February both Mackenzie and Blake were clamouring for a reply to Blake's October memo and Dufferin on their behalf was asking for a copy of "the Chancellor's Memorandum" as if one already existed. In fact it had not yet been drafted. Perhaps in response to Dufferin's repeated requests Herbert directed his assistant under-secretary, W.R. Malcolm, to alter a draft of a despatch from the Earl of Carnavon to Dufferin into a memo. Malcolm completed this task on March 2. The draft despatch had never been sent by Carnavon although it had been printed for the use of the Colonial Office on January 1.

  There is some suggestion in Mackenzie's correspondence back in November that Carnarvon may at one point have intended to send such a despatch. The draft despatch formed the core of the memorandum which Cairns later made his own. It also contained passages almost identical to those in the Privy Council Office's memorandum prepared by the Registrar Henry Reeves in August 1875. Lord Carnarvon sent both Reeves' memo and Cairns' memo to Canada on March 9, 1876.

  It is likely that whoever drafted the original despatch had borrowed from Reeves' memo certain portions which Malcolm later excised when it was decided that Reeves' memo would be sent to Canada along with a memo on behalf of Cairns. Understandably Malcolm crossed out the words: "The appeal it must be remembered, lies to Her Majesty in Council, not to the Judicial Committee of the Privy Council." If pressed it would have been impossible to maintain the validity of this distinction.

  Malcolm also removed the paragraph which began as follows: "The appellate jurisdiction of Her Majesty in Council exists for the benefit of the Colonies, and not for that of the mother country&ldots;" Given that Cairns' concern was for the integrity of the Empire this clause sounds somewhat anachronistic in the context of 1876, and would have been more appropriate for the 1860's or earlier.

  Also excised was a slightly modified version of an often quoted passage in Reeves' memo which has occasionally though perhaps incorrectly been attributed to the Judicial Committee itself:

This power of hearing appeals has been exercised for centuries, as regards all the dependencies of the Empire, by the Sovereigns of this country in Council; that is to say, the Sovereign to whom the prayer for relief is addressed, affords that relief, with and by the advice of a certain number of the most eminent judicial officers and jurists of the realm, who are sworn of the Privy Council for this purpose. The final order made on each appeal is the direct act of the Queen in person. So that by this institution, common to all parts of the Empire beyond the seas, all matters whatsoever, requiring a judicial solution, may be brought under the cognizance of one Court, in which all of the chief judicial authorities of this country have a voice. To abolish this controlling power, and to abandon each Colonial dependency to a separate Final Court of Appeal of its own, would be obviously to weaken one of the most important ties which still connect all parts of the Empire in common obedience to the source of law, and to renounce a most essential mode of exercising the authority of the Crown over its possessions abroad.

Lord Cairns Settles On A Way Of Preserving The Imperial Appeal Without Having To Disallow Canada's Supreme Court Act

  After some further minor changes were made, presumably by Malcolm and Herbert, the draft memo was sent to Lord Chancellor Cairns for his revision. Subject to the alterations he made on the draft he indicated his approval and crossed out Malcolm's initials and added his own initial at the end of the draft. The draft memo began by referring to section 47 of the Canadian Act, which prohibited 'appeals to any Court of Appeal established by the British Parliament by which appeals to Her Majesty in Council may be ordered to be heard, saving any right which Her Majesty may exercise by prerogative.' Cairns' most significant addition to the draft memo was a new second paragraph:

It may, in the first place, be observed that this section is framed in such a way that it would in reality be inoperative. There is not, and there is not likely to be, any appeal from any Colony "to any Court of Appeal established by Parliament." The only appeal from a Colony known to the Constitution is an Appeal to Her Majesty in Council. The Memorandum, however, will assume that the intention of the Act is to prohibit such an appeal.

  Two observations can be made about this paragraph. Firstly, Cairns added it to the draft on March 8; and as I have stated already it was on the same date one year earlier in 1875 that he announced in Parliament that he had had no choice but to withdraw the British Supreme Court of Judicature Act (1873) Amendment Bill which he had reintroduced only one month previously. Thus had died the last serious attempt to carry through Lord Selborne's creation of a new court of appeal. So Lord Cairns could not reasonably imply that Irving's amendment of March 30, 1875, introduced three weeks after his own announcement in Parliament, was drafted in contemplation of Selborne's by then dead and buried court of appeal. But imply he did, and he had the power to get his way. Certainly, Canada's Justice Minister, Edward Blake, was no obstacle.

  Secondly, contrary to what Cairns suggested, appeals from 'a colony' did not proceed by virtue of Constitutional right, nor as reeves might have suggested by centuries-old custom. Appeals from Canada and elsewhere proceeded pursuant to the aforementioned 1833 Act of Britain's Parliament and were heard by the court created by that same statute for all such appeals, namely, the Judicial Committee. Section 47 therefore, in prohibiting appeals 'to any Court of Appeal established by Parliament', included the Judicial Committee in its prohibition. We already know from what Irving said in Parliament that when he spoke of the Appeal Court he had the Judicial Committee in mind.

  Consequently, acting as though the Judicial Committee was not a court became essential to Cairns' objective of maintaining appeals from Canada, and this despite the fact that Cairns himself had referred to the Judicial Committee as a court while speaking in Parliament, that the case law of the Judicial Committee itself was replete with references to it as a court, that the Privy Council by memorandum had referred to the Judicial Committee as a court, and that the founding statute of the Judicial Committee used the word court in describing its legal process. So, when on the second page of the draft memo a reference appeared to the 'Supreme Tribunal', Cairns crossed it out and replaced it with the 'Sovereign in Council', and when the Judicial Committee was referred to implicitly as a 'higher Court' he crossed that out too. One is reminded of Sir George Bowyer's question in earnest to Benjamin Disraeli: "If we abolished all fictions what would become of the Constitution?" The fiction worth preserving for Cairns was stated on page four of the draft memo: "Every hearing of a case and every judgment delivered in the name of the Queen in Council is an exercise of the prerogative&ldots;." Cairns was acutely aware that the Queen in 1876 was a potent symbol of Empire for the governed and therefore an important tool to be used by the governors, and as he had in the past, he did not shy away this time either from insisting that the Crown had powers which in reality were the preserve of Parliament. One cannot help but notice that had not Disraeli and the Cabinet prevented Cairns from transferring the Judicial Committee's jurisdiction to Selborne's Court of Appeal or his own Imperial Court of Appeal during the last couple of years, he would have been deprived by his own doing of this tool which he used so handily against Canada's Supreme Court in 1876.

  Cairns' draft memo asserted that section 47 was wrong in suggesting that there was a distinction to be drawn between an appeal to the sovereign in council as a form of prerogative remedy in special cases and the usual type of appeal to the Judicial Committee. Cairns' assertion that the appeal was one and indivisible was perhaps what led him to speak disparagingly of Reeves' memo when he met Blake in London on July 5, 1876. It might also explain why he did not make use of the sort of argument later accepted by the Judicial Committee itself in 1926 that section 2 of the Colonial Laws Validity Act (which provided that any colonial law repugnant to any Act of the Imperial Parliament extending to the colony was void and inoperative) made void the attempt in section 47 of the Supreme and Exchequer Court Act to abolish appeals to the Judicial Committee. He certainly did not wish to call attention to the statutory basis of appeals to the Judicial Committee.

  Just as likely though, the Colonial Laws Validity Act was understood by Reeves, Malcolm, Herbert and Cairns not to extend to the Supreme and Exchequer Court Act. The former Act had been passed about ten years earlier in 1865 with the intent of giving colonies greater legislative freedom, not less. This is partly evident from section 1 which construed Acts of Parliament as extending to any colony only when they were made applicable to such a colony by express words or necessary intendment. In the case of the Judicial Committee, its founding Act of 1833 did not mention Canada expressly, nor was Canada's inclusion necessarily intended.

  By the time Cairns met with Blake he had convinced himself that section 47 nullified itself by saving at its end the Queen's prerogative right to admit appeals. This was the opposite of his earlier opinion in November of 1875 that it was, "waste paper." The saving clause was now crucial to his new interpretation (or reading down) of section 47. The controversy had therefore come to an end. Cairns endorsed the idea of regulating appeals so as to discourage their overuse in the future. In mid July he drafted another memo to be sent to Canada, paragraphs 4 to 7 of which laid out his thinking on section 47 which he personally would later incorporate into caselaw:

4. It is to be observed that in this Section the affirmative words, "the judgment shall be in all cases final and conclusive," appear to be introductory and collateral to the negative words which follow: "No appeal shall be brought from any Judgment or Order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland by which appeals or petitions to Her Majesty in Council may be ordered to be heard," and inasmuch as the Parliament of the United Kingdom has not established, and is not likely to establish, any such Court of Appeal, this portion of the Clause would seem to be altogether inoperative.

5. Supposing, however, that the affirmative words, "The Judgment of the Supreme Court shall in all cases be final and conclusive," were to be looked upon as operative, they must now be read in connection with the saving which is made of "any right which her Majesty may be graciously pleased to exercise by virtue of Her Royal Prerogative," and the Clause would in effect read thus: "The Judgment of the Supreme Court shall be final and conclusive, saving the Royal Prerogative of her Majesty to review the Judgment if she is pleased to exercise it."

6. Viewing the enactment in this way, Her Majesty's Government are glad to be able to arrive at the conclusion that there is no reason why I should advise Her Majesty to disallow the Act or Section in question.

7. It is not perhaps probable that there will be many occasions on which the suitors before the new Supreme Court will be desirous of appealing to Her Majesty in Council from its decisions. It will, however, be desirable that some regulations should be made as to the value for which, and the conditions under which, appeals ought to be permitted to Her Majesty in Council. I will not enter upon any question as to the shape which these regulations ought to assume, inasmuch as I have no doubt the subject will, at a fitting opportunity, be brought before the Parliament of the Dominion, with whom, in the first instance at least, the consideration of these regulations ought to rest.

Lord Cairns Makes His Reading of Section 47 a Part of The Case Law

  In order to demonstrate that the Judicial Committee would refrain from hearing too many appeals from Canada and thereby avoid causing undue financial hardship to litigants, but more importantly so as to guarantee the ascendancy of his view that appeals to the Judicial Committee should continue, Lord Cairns took the unprecedented step for him of twice sitting on the Judicial Committee when it heard petitions for leave to appeal from Canada. I stated earlier that Lord Cairns had not found the time to attend the hearing of Canadian constitutional appeals. The fact that he attended the hearing of these petitions for leave to appeal, which but for his input were of little importance, underlines clearly how very crucial the appeals issue was to him as a matter of policy. The age of ever increasing colonial independence which Canadian lawyers and politicans had learned to take for granted, and which British leaders had been fostering not even a decade ago, had officially and somewhat dubiously come to an end.

  The first such hearing occurred later that year in November. Lord Cairns delivered the Judgment of the Judicial Committee in Joseph Theberge v. Philippe Laudry (1876), 2 A.C.102 at 106. Cairns was careful to emphasize the facts of the case which involved a ruling, inter alia, that a candidate for election was guilty of corrupt practices and that the court below was exercising a power formerly exercised by the legislature. He wanted to make it clear that his decision to deny special leave to appeal to the Judicial Committee in no way affected the general rule that the prerogative of the Crown could not be taken away except by a specific enactment. In this case the legislation had provided for no appeal:

Their Lordships wish to state distinctly, that they do not desire to imply any doubt whatever as to the general principle, that the prerogative of the Crown cannot be taken away except by express words; and they would be prepared to hold, as often has been held before, that in any case where the prerogative of the Crown has existed, precise words must be shewn to take away that prerogative. (emphasis added).

But, in the opinion of their Lordships, a somewhat different question arises in the present case. These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in their character. They are not Acts constituting or providing for the decision of mere ordinary civil rights; they are Acts creating an entirely new, and up to that time unknown, jurisdiction in a particular Court of the colony for the purpose of taking out, with its own consent, of the Legislative Assembly, and vesting in that Court, that very peculiar jurisdiction which, up to that time, had existed in the Legislative Assembly of deciding election petitions, and determining the status of those who claimed to be members of the Legislative Assembly. A jurisdiction of that kind is extremely special, and one of the obvious incidents or consequences of such a jurisdiction must be that the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way that should as soon as possible become conclusive, and enable the constitution of the Legislative Assembly to be distinctly and speedily known.

  In this passage Cairns described two Acts of Parliament as "peculiar", with a jurisdiction 'entirely new", and "unknown", and a "particular" court as, "very peculiar" and "extremely special". He later characterized the subject matter of the legislation as "extremely peculiar". While this plethora of epithets may now seem to the reader so overdone as to be comical, Cairns was being deadly serious and he knew what he was doing. He convinced posterity of how unusual this case was so that there could be no possibility of it later being misinterpreted as an authority for prohibiting appeals as Cuvillier v. Aylwin had been for so long. He summarized for good measure:

These are considerations which lead their Lordships not in any way to infringe, which they would be far from doing, upon the general principle that the prerogative of the Crown, once established, cannot be taken away, except by express words&ldots;.

In other words their Lordships have to consider, not whether there are express words here taking away [the] prerogative, but whether there ever was the intention of creating this tribunal with the ordinary incident of an appeal to the Crown.

  In any event, he concluded, this was not a case in which an appeal ought to be admitted.

  The following year in December Lord Cairns took the opportunity to make a legal pronouncement on section 47 itself in James Johnston v. The Ministers and Trustees of St. Andrew's Church, Montreal (1877), 3 A.C. 159 at 162. The advantage of being Lord Chancellor allowed him to ensure, as a judge, that his view of section 47 became the law. He was acting as a judge in his own cause; today, in Canada at least where the idea of a political office holder and member of the government also being the chief judicial officer of the country seems outrageous, Lord Cairns' actions would be improper and unacceptable and could easily lead to his removal from the bench and the end of his career. But in nineteenth century imperial Britain his behaviour did not cause a stir. In fact, as will be seen in the cases which follow, it was condoned.

  In this case James Johnston took St. Andrew's Church to court for refusing to re-lease a pew to him for one year. He claimed damages for the harm inflicted to his good name and reputation when the church removed his books from the pew and his hassocks (small, stuffed footstools for kneeling on), and placed strangers in the pew. This cause of action may seem picayune now but in the nineteenth century organized Christian religion loomed large. The case was amply litigated before it reached the Judicial Committee. Johnston lost at first instance and again on appeal but won a second appeal in which the Supreme Court of Canada awarded him $300 in damages. The ministers and trustees of St. Andrew's then petitioned for leave to appeal from the Supreme Court to the Judicial Committee.

  Given that the amount involved was only $300, and that the case involved no general principle which could have any bearing on other cases, and that what was involved was simply the interpretation of a contract which could in the future easily be altered at the will of the party seeking leave to appeal, the Judicial Committee could have refused to assent to the petition without saying much more.

  Instead Lord Chancellor Cairns laid down his interpretation of section 47 of the Supreme and Exchequer Court Act in order to make it a legal precedent that the middle part of the section would never be interpreted to include the Judicial Committee as a court established by Parliament (in 1833), contrary to what Aemilius Irving had intended:

The first question is, is there in this case a power, notwithstanding the Canadian Act, to allow, if Her Majesty should be so advised, such an appeal. Now I will read the section of the Canadian Act. It is the 47th section: - "The Judgment of the Supreme Court shall in all cases be final and conclusive, and no appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland, by which appeals or petitions to her Majesty in Council may be ordered to be heard, saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her Royal prerogative." That section consists of three parts; the second or intermediate part of the section contains the negative words, "no appeal shall be brought," et cetera. Those words their Lordships may leave out of consideration, because they refer to what may be called the hypothetical establishment of a Court by the Parliament of Great Britain and Ireland, by which Court appeals from the colonies are supposed to be ordered to be heard; and inasmuch as no Court of that kind has been established, that part of the section may be omitted from our consideration. I will read it, therefore, as if the section ran thus, "The judgment of the Supreme Court shall in all cases be final and conclusive, saving any right which Her Majesty may be graciously pleased to exercise by virtue of Her royal prerogative." (emphasis added).

Now their Lordships have no doubt whatever that assuming, as the Petitioners do assume, that their power of appeal as a matter of right is not continued, still that Her Majesty's prerogative to allow an appeal, if so advised, is left entirely untouched and preserved by this section. Therefore their Lordships would have no hesitation, in a proper case, in advising Her Majesty to allow an appeal upon a judgment in this Court.

But the question remains, assuming that there is the power to allow an appeal, is this a case in which the special prerogative of Her Majesty should be exercised?

Upon that point their Lordships have been unable to discover any adequate grounds for the special exercise of the prerogative&ldots;.

  So with all the subtlety of a sledgehammer Lord Cairns succeeded in his aim to preserve the Judicial Committee's status as Canada's final court of appeal simply by omitting the middle part of the section, and in 1879 when Valin v. Langlois (1879-80), 5 A.C. 115 came before the Judicial Committee, Lord Selborne at page 117 in delivering Judgment alluded to section 47 of the Supreme and Exchequer Court Act and the decision of Lord Cairns as follows:

It has been rendered necessary, by the legislation which has taken place in the colony [i.e. Canada], to make a special application to the Crown in such a case for leave to appeal; and their Lordships have decided on a former occasion that a special application of that kind should not be lightly or very easily granted; that it is necessary to shew both that the matter is one of importance, and also that there is really a substantial question to be determined.

He also said at page 118:

It is not to be presumed that the Legislature of the dominion has exceeded its powers, unless upon grounds really of a serious character.

  In Cushing v. Dupuy, (1879-80), 5 A.C. 409, heard less than two weeks before Lord Selborne resumed the Lord Chancellorship from Lord Cairns, the Judicial Committee addressed a preliminary issue in that case of the power of the Queen to admit the appeal as an act of grace. The lower court in Canada had refused leave to appeal from it to the Judicial Committee because under the applicable legislation its judgment was to be final. The appellant then presented a petition to Her Majesty for special leave to appeal. Sir Montague Smith referred as had Lord Cairns to the general principle that the rights of the Crown could only be taken away by express words. He then quoted directly from Cairns' judgments in Johnston and in Theberge. Smith decided to hear the appeal on its merits contrary to Lord Selborne's dictum in Valin that the matter should be one of importance involving a substantial question. Here the only question was the validity of a sale of goods, made four months prior to the insolvency of the seller of them. The Judicial Committee agreed with the court below that the transaction was not bonafide and affirmed the judgment appealed from.

  That the Judicial Committee would entertain an appeal of so little importance other than to the parties themselves was not a good sign. It had been speculated in the March 1876 memorandum of Lord Cairns that a strong Supreme Court of Canada would result in very few cases being appealed to England so that the, "right of appeal" should fall into disuse. But with cases of this low calibre being appealed directly from provincial courts to the Judicial Committee the Supreme Court would not stand a chance of becoming strong.

  Finally, in Prince v. Gagnor (1882), 8 A.C. 103 at 105, Lord Fitzgerald stated:

Before the constitution of the Supreme Court of the Dominion of Canada there was a right to appeal from the courts then in existence where the value of the matter in controversy was beyond 500, but that does not apply to the Supreme Court. The language of the Legislature of the Dominion is:

"The judgment of the Supreme Court shall in all cases be final and conclusive, saving any right which Her Majesty may be graciously pleased to exercise by virtue of her royal prerogative&ldots;."

What is remarkable about this is that Lord Fitzgerald omitted the central part of the section while pretending to quote directly from, "[t]he language of the Legislature of the Dominion.&ldots;" In reality he was simply using the wording wished into existence by Lord Cairns in Johnston because the wording of section 47 never was altered by the Parliament of Canada, contrary to what Lord Fitzgerald let on, and remained in its original form (save a few commas and capitals) until appeals to the Judicial Committee were abolished in 1949. And for that long Lord Cairns' efforts helped to preserved the Judicial Committee as Canada's final court of appeal, much to the detriment of the Supreme Court of Canada.

  Endnotes To The Introduction

 1. J. Martin's Britain and the Origins of Canadian Confederation, 1837-67. (London: MacMillan, 1995), is an informative text on this point; D.M.L. Farr, The Colonial Office and Canada, 1867-1887. (Toronto: U of T Press, 1955), see especially chapters one and nine. Also C.A. Bodelsen's Studies in Mid-Victorian Imperialism. (London: Heinemann 1924), which is useful and detailed but incorrect as are many sources in saying that Benjamin Disraeli had no interest in the colonies prior to 1872.

It should be remembered that it was Disraeli who said in the House of Commons on February 5, 1863: "Colonies do not cease to be colonies because they are independent." Disraeli's anti-colonial outbursts were isolated and were made in the context of his rivalry with William Gladstone. As Chancellor of the Exchequer he was anxious to show that he could control his budget as well as Gladstone had controlled his while he was Chancellor and was frustrated at the cost of, "those damned defences" of the colonies, particularly in British North America. Other sources for a general history of the period are: A.P. Thorton, The Imperial Idea And It's Enemies: A Study In British Power. (London: MacMillan & Co.Ltd., 1959); T.O. Lloyd, The British Empire 1558-1983. (Oxford Univ. Press 1984); L. James, The Rise And Fall Of The British Empire. (New York: St. Martin's Press, 1994); E. Grierson, The Death Of The Imperial Dream: The British Common-Wealth And Empire 1775-1969. (New York: Doubleday, 1972); R. Koebner and H.D. Schmidt, Imperialism: The Story and Significance of a Political Word, 1840-1960. (Cambridge Univ. Press, 1964); H.E. Egerton, A Short History of British Colonial Policy. (London: Methuen & Co. Ltd., 1924).

2. Exactly what impact Disraeli's Crystal Palace speech had on the public is now a point of controversy. See C.C. Eldridge's Disraeli And The Rise Of A New Imperialism. (Cardiff: Univ. of Wales Press, 1996). Eldridge goes too far in confining the speech's impact to restoring the Conservative party's morale and confirming Disraeli's leadership. Eldridge relies on the analysis of Koebner and Schmidt (endnote 1) who stated that the whole section of Disraeli's speech which dealt with the Empire fell flat in its effect on public opinion and met with almost no response in the press. Yet little more than a week after Disraeli spoke The Evening Standard newspaper on July 2, 1872 (known formerly as The Standard until March of that year) wrote that, "[t]he cue since Disraeli has spoken at the Crystal Palace is to affect surprise that anyone should talk of danger to the Empire." The Evening Standard was a Conservative paper. His speech also elicited responses defensive in nature from Liberal papers such as the Daily News, The Pall Mall Gazette and the Spectator as well as the generally Liberal Times, see Bodelson (endnote 1) 121. D.G. Creighton's, "The Victorians And The Empire", 19 Canadian Historical Review. 138-153, is a masterful commentary on the changing British attitude from what he calls commercial cosmopolitanism to territorial imperialism in the nineteenth century.

3. His words were directed at the past mistakes of his Liberal opponents. However a future Liberal Imperialist, Viscount Haldane, would make a careful effort to provide the Canadian Parliament with the powers it needed to be able to come to the military aid of Britain when necessary.

4. J. Morris, Pax Britannica: The Climax Of An Empire. (London: The Folio Society, 1992) 6. Since writing his text James Morris has become a woman and her name is now Jan Morris.

5. Ibid., 136.

6. Theories of Canadian Federalism - Yesterday and Today. A.R.M. Lower, (Durham: Duke University Press, 1958) p. 38. Lower was referring specifically to Lord Watson and Viscount Haldane.

7. The relevant passages of Christopher Dunkin's speech are located in the Confederation Debates of the Province of Canada, 1865. 525-528. F. Murray Greenwood felt it was unlikely that Lord Watson could think that by increasing the role of the provinces in the constitution, the loyalties of Canadians would be steered away from a national feeling (which could only exist at the expense of support for the Empire). See his article, "Lord Watson, Institutional Self-Interest, And The Decentralization of Canadian Federation in the 1890's." (1974), 9 U.B.C. Law Review. 244 at 260.

8. Creighton (endnote 2) 151, 152.

End Notes To The Main Body

1. Hansard's Parliamentary Debates, Third Series. Commencing with the accession of William IV. (London: Cornelius Buck, 1871; New York, Kraus Reprint Co., 1971) vol. 151.,697.

2. R. Blake, Disraeli. (New York: St. Martin's Press, 1967). 455; W.F. Monypenny and G.E. Buckle, The Life of Benjamin Disraeli, Earl of Beaconsfield. Vol. 2. (New York: MacMillan, 1929). 213.

3. For a more elaborate description of the duties of the Lord Chancellor see R.F.V. Heuston, Lives Of The Lord Chancellors, 1885-1940. (Oxford: Clarendon Press, 1964); and same author, Lives Of The Lord Chancellors. Vol 2: 1940-1970. (Oxford Univ. Press, 1987). 23-29.

4. ie. the job of being Lord Chancellor: "The Woolsack is a large square bag of wool covered with red cloth inside a wooden frame&ldots;". Sacks of wool were provided for important persons to sit on at meetings of medieval Parliaments. Ibid., Heuston, Vol. 2., 13.

5. Hailsham, Lord Chancellor from 1935 to 1938 was the only other Chancellor never to sit on a Canadian constitutional appeal. Lords Selborne and Finlay sat on appeals but after their terms as Lord Chancellor had expired. Cairns did hear two petitions for leave to appeal from Canada. Generally see, J.B. Atlay, The Victorian Chancellors. (In Two Volumes). (London: Smith, Elder & Co., 1908); Robert Stevens, Law and Politics: The House Of Lords as a Judicial Body, 1800-1976 (Chapell Hill: The Univ. of North Carolina Press, 1978).

6. M.S. Dep, Hughendon Papers, Oxford; supra, endnote 2, Blake, 638.

7. Now Officially, the Constitution Act, 1867.

8. The opening words of section 91 gave Canada's Parliament the power to make laws, "in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces&ldots;" and the concluding words of section 91 added that, "any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces."

9. See. F. MacKinnon, "The Establishment of the Supreme Court of Canada", (1946) 27 Canadian Historical Review. 258 at 266; and Dufferin - Carnarvon Correspondence, 1874-1878 ed. C.W. de Kiewiet and F.H. Underhill: and see F.H. Underhill, "Edward Blake, The Supreme Court Act, And The Appeal to The Privy Council, 1875-6", 19 Canadian Historical Review. 245. Other sources include D.M.L. Farr, The Colonial Office and Canada, 1867-1887. (Toronto U of T Press, 1955). Chapter five; Ian Bushnell, The Captive Court: A Study Of The Supreme Court of Canada. (Montreal & Kingston: McGill-Queen's Univ. Press, 1992). Part A; D.B. Swinfen, Imperial Appeal: The Debate On The Appeal To The Privy Council, 1833-1986. (Manchester Univ. Press, 1987) Chapter two, although Swinfen makes an obvious error in characterizing clause 47 as purporting to abolish appeals from provincial courts as well as the Supreme Court. It was only appeals from the Supreme Court which were the subject of clause 47. The mover of the amendment which became clause 47, Aemilius Irving, had also put forward an earlier amendment as we shall see to prohibit appeals from provincial courts to the Judicial Committee but was twice defeated by the House.

10. Sir John A. MacDonald papers, National Archives of Canada, Volume 159, Reel c-1567, 64676.

11. The impact of the Guibord case on the formation of the Supreme Court is well-explained by Bushnell, endnote 9, 14-20.

12. A thorough biography of Ritchie has been written by Gordon Bale, Chief Justice William Johnstone Ritchie. (Don Mills (Toronto): Carleton University Press Canada, 1991). The pamphlet was published by G.E. Fenety, Fredericton, New Brunswick and can be found in the Edward Blake papers, Archives of Ontario, MU 266. It is also reproduced by Bale in Appendix 2 of his book at 339.

13. Supra, endnote 10, 64706.

14. Canadian House of Commons Debates, 1870, 502-8.

15. Ibid., March 9, 1881.,1302.

16. Supra, endnote 1, Vol. 201., 1294.

17. Ibid., 1296.

18. These are the final words of section III of, "AN ACT for the better Administration of Justice in His Majesty's Privy Council." (3 & 4 William 4, c.41.) This Act came into force on August 14, 1833 and created The Judicial Committee of the Privy Council. For the full text of sections I, II, and III see endnote 28. Sections IV through XXI dealt with various aspects of evidence, procedure, witnesses, contempt, costs, etc. Sections XXII to XXIV dealt with matters relating to India and the East Indies. Sections XXV to XXXI dealt with miscellaneous matters such as appointing judges for the Judicial Committee, duties of the Registrar etc. Legislative changes to the Judicial Committee were made throughout the nineteenth century. For copies of all such statutes and orders in council up to 1873 see William Macpherson, The Practice of the Judicial Committee of Her Majesty's Most Honourable Privy Council. (London: Henry Sweet, 1873). Appendix, 1-144.

19. Supra, endnote 1, Vol. 202., 64-5.

20. Ibid., Vol. 210., 1249.

21. Supra, endnote 9, Bushnell, 26; Robert Stevens, "The Final Appeal: Reform of the House of Lords and Privy Council 1867-1876" (July 1964), 80 The Law Quarterly Review. 343 at 345.

22. Ibid, Stevens, 351- 353 especially footnote 63 therein, where Cairns is quoted in a letter to Selborne as saying, "&ldots;I have every urge and desire to support the measure in its appellate as well as in its general aspect". S.21 of Selborne's Act gave power to transfer the jurisdiction of the Judicial Committee to the new Court of Appeal by Order in Council. See Stevens, 356, footnote 83. In the end, Disraeli opted for preserving the judicial function of the House of Lords while Cairns throughout tried without success to finish Selborne's reforms. See Stevens, 362. The conclusions drawn by Underhill (endnote 9,19 Canadian Historical Review 255) might mistakenly leave one with the impression that Cairns had fought to preserve the historical form of the Judicial Committee while the converse is true. Underhill, writing in 1938 did not have the benefit of viewing the correspondence of Cairns with Selborne and Disraeli as did Stevens.

23. Supra, endnote 1, Vol. 210, 1991. Cairns' comments on the added weight the colonists gave the Judicial Committee are not without accuracy. See for example the speech of Mr. Laflamme in the Canadian House of Commons Debates three years later on March 27, 1875 at page 437.

24. The source for Bethune as well as Medley and Binney which follow is the Archbishop Archibald Campbell Tait Papers, Lambeth Palace Library, London, U.K. Vol. 159., 268-334.

25. Supra, endnote 1, Vol. 186., 376.

26. Supra, endnote 14, February 23, 1875, 286. Fournier was anticipating that the Judicial Committee's jurisdiction would be transferred to a new, "Supreme Court of Judicature" as he called it. The following month Cairns was forced by Disraeli and the Cabinet to abandon all such schemes. By 1876 Britain's court reforms had been completed and the Judicial Committee retained the jurisdiction it had in 1833 when it was first created.

27. Ibid., 746. Irving said: "My intention is to prepare some amendments which I will move when the House is in Committee on the Bill, and they will include amendments with respect to appeals to England&ldots;. &ldots;I will propose to abolish the rights of Provincial Courts to give an appeal to England.

Sir JOHN MACDONALD - You cannot do that.

Mr. IRVING&ldots; I will compel the parties appealing from the Provincial Courts to go before the Supreme Court. I propose to declare that the judgment of that Supreme Court will be final; that there should be no appeal to any Statutory Court in England, that is any court having an appellate jurisdiction by statute, which I think the Dominion Parliament has power to enact, but saving the prerogative right of the Sovereign to hear any appeal to Her in Council, because I have found there is a distinction between an appeal to the Sovereign in Council and an appeal to the Appeal Court in the sense of the Judicial Committee of the Privy Council."

The amendment which Irving proposed and which became section 47 of the Supreme and Exchequer Court Act was moved by him on March 30 and read as follows: "The judgment of the Supreme Court shall in all cases be final and conclusive, and no error or appeal shall be brought from any judgment or order of the Supreme Court to any Court of Appeal established by the Parliament of Great Britain and Ireland, to which appeals or petitions to HER MATESTY [sic] in Council may be ordered to be heard, saving any right which HER MAJESTY may be graciously pleased to exercise as her royal prerogative." Ibid., 976.

  For an example of the commentators' view that Irving's amendment was intended to refer to Selborne's proposed court of appeal see Underhill (endnote 9, 19 Canadian Historical Review 254).

28. It is helpful to reproduce sections I, II and III in full:

It is Enacted,

I. That the President for the time being of His Majesty's Privy Council, the Lord High Chancellor of Great Britain for the time being, and such of the members of His Majesty's Privy Council as shall from time to time hold any of the offices following, that is to say, the office of Lord Keeper or First Lord Commissioner of the Great Seal of Great Britain, Lord Chief Justice or Judge of the Court of King's Bench, Master of the Rolls, Vice Chancellor of England, Lord Chief Justice or Judge of the Court of Common Pleas, Lord Chief Baron or Baron of the Court of Exchequer, Judge of the Prerogative Court of the Lord Archbishop of Canterbury, Judge of the High Court of Admiralty, and Chief Judge of the Court in Bankruptcy, and also all persons members of His Majesty's Privy Council who shall have been President thereof or held the office of Lord Chancellor of Great Britain, or shall have held any of the offices hereinbefore mentioned, shall form a Committee of His Majesty's said Privy Council, and shall be styled "The Judicial Committee of the Privy Council": Provided nevertheless, that it shall be lawful for His Majesty from time to time, as and when he shall think fit, by his sign manual, to appoint any two other persons, being Privy Councillors, to be members of the said committee.

II. That from and after the 1st of June 1833, all appeals or applications in prize suits and in all other suits or proceedings in the Courts of Admiralty, or Vice Admiralty Courts, or any other court in the plantations in America and other [of] His Majesty's dominions or elsewhere abroad, which may now, by virtue of any law, statute, commission, or usage, be made to the High Court of Admiralty in England, or to the Lords Commissioners in prize cases, shall be made to His Majesty in council, and not to the said High Court of Admiralty in England or to such Commissioners as aforesaid; and such appeals shall be made in the same manner and form and within such time wherein such appeals might, if this Act had not been passed, have been made to the said High Court of Admiralty or to the Lords Commissioners in prize cases respectively; and that all laws or statutes now in force with respect to any such appeals or applications shall apply to any appeals to be made in pursuance of this Act to His Majesty in council.

III. That all appeals or complaints in the nature of appeals whatever, which, either by virtue of this Act, or of any law, statute, or custom, may be brought before His Majesty or His Majesty in council from or in respect of the determination, sentence, rule, or order of any Court, Judge, or judicial officer, and all such appeals as are now pending and unheard, shall from and after the passing of this Act be referred by His Majesty to the said Judicial Committee of his Privy Council, and that such appeals, causes, and matters shall be heard by the said Judicial Committee, and a report or recommendation thereon shall be made to His Majesty in council for his decision thereon as heretofore, in the same manner and form as has been heretofore the custom with respect to matters referred by His Majesty to the whole of his Privy Council or a committee thereof, (the nature of such report or recommendation being always stated in open court).

29. Bushnell suggests (endnote 9, 25) that the confusion arose because people in the nineteenth century thought an appeal could still lie to the Sovereign rather than the Judicial Committee by petition or "appeal upon doleance". But Irving made no such reference himself and the nineteenth century case law makes no mention of this. Lord Coleridge in Credit Foncier of England v. Amy; Baily v. Amy (1874), 6 L.R. 146 at 155, an appeal from the Royal Court of Jersey, seemed to suggest that "doleance" had come to mean something else which was neither favourable nor well known in practice:

Their Lordships have said nothing on the ground of doleance. It is far better, when there is fair ground of raising all that their Lordships think fit to be raised,--apart from all personal questions,--so to raise it. A doleance, in Mr. de Geyt's book on the Laws of Jersey, is very properly described as an odious proceeding. It is a personal charge against a judicial officer,--a personal charge either of misconduct or of negligence; and if all that could be gained to a Petitioner by a doleance is gained to him by the ordinary appeal in the manner in which their Lordships think it open to this Petitioner, their Lordships think it right to confine him to that ordinary appeal, and to dismiss the matter as regards the doleance, and as regards the personal negligence of the officer whose character would be impeached by granting leave to bring such a doleance before this committee.

  This is consistent with the civil law origin of the doleance which was a complaint against the judges rather than an appeal, although use of the doleance more in the nature of an appeal seems to have arisen in connection with Privy Council appeals from the Channel Islands in the 1600's. (The Channel Islands are located in the English Channel just off the northern coast of France). A century later the term doleance described all petitions for leave to appeal from the Islands. In the context of American appeals it seems to have been a special sort of appeal resorted to by resolute or wealthy litigants. There also seems to have been a now little understood third method of approaching the Privy Council which was available to Guernsey litigants in addition to the appeal and the doleance which was the, "appeal by way of doleance". Even so doleance appeals were heard by the Privy Council not the Sovereign. Generally see Joseph Henry Smith, Appeals to the privy Council From The American Plantations. (New York: Octagon Books, Inc., 1965). 27-28, 282-288, 660, 662.

  It would seem that the doleance originated in respect of Jersey and Guernsey in the Channel Islands, and did not develop significantly beyond them. An isolated exception is In Re Stronach (1838), 12 E.R. 1023 at 1025, where Baron Parke in dealing with a petition from the island of Granada left open the question of whether the issue of the jurisdiction or lack thereof of a lower court judge could come before the Judicial Committee, "in the shape of a Doleance&ldots;".

  In the Jersey case, Ex parte Charles Nicolle (1879-80), 5 A.C. 346 at 348, Sir James W. Colvile delivered the Judgment of the Judicial Committee and said:

  When this petition first came before this Board, their Lordships conceived that a case had been made for further inquiry into the correctness of the orders impeached; but thought that the proceeding by way of doleance would afford the least expensive and probably the most convenient mode of trying the question. This mode of proceeding, though termed "odious" by the Code of 1771, has been approved of and recommended by Her Majesty's Commissioners on the law of Jersey; and their Lordships need hardly say that its adoption on the present occasion implies no disrespect towards the Royal Court.

  In an earlier Jersey case, In Re Whitfield (1838),12 E.R. 1007 at 1008, Dr. Lushington as counsel made a similar argument without success. He said: "A Doleance is a complaint to the supreme power, on a matter not the subject of appeal, and is not confined to cases of complaint against a Judge." He did not elaborate. Opposing counsel argued that a doleance was, "a matter of personal complaint against the Judge. The definition of a Doleance is to be found in the 163rd article of the Jersey Code of 1771. 'Les Doleances etant en elles-memes odieuses, parce qu' elles sont particulierement dirigees contre le Juge, dont l'honneur doit etre maintenu a cause de la Justice, Sa Majeste avec l'avis de son conseil, doit imposer telle amende sur la partie qui se plaignant de cette maniere, faudra de justisier ses plaintes que les circonstances peuvent requerit.'" Lord Brougham in delivering the Judgment of the Judicial Committee said that there was no ground for a Doleance because the court below did not misconduct itself.

  To all of this is added the opinion of Lord Brougham, after the report of Cuvillier v. Aylwin found in Stuart's Reports [1832] at 527 and which may therefore have come to the attention of Irving. It is also reproduced by L.A. Cannon in his article, "Some Data Relating to the Appeal to the Privy Council", Canadian Bar Review, 3 (Oct.,1925), 457.

Opinion.

  I am clearly of opinion that no such limitation [i.e. a Lower Canada statute preventing appeals involving sums less than 500] is valid to bar an appeal to the King in council. By law his right of appeal can only be taken from the subject by a new law. I should greatly doubt if any colonial act though allowed by the Crown, if unconfirmed by act of parliament, has power to take from the subject this right. But a colonial act never allowed, can clearly have no effect. Even in cases where a limitation has been validly introduced by law, the privy council have been in the practice of allowing appeals almost as a matter of course. Such petitions are termed petitions of doleance, and I believe never refused, although the law may have excluded appeals under a certain amount or after a certain time.

In the result, Brougham was wrong because the Judicial Committee did not hear the appeal and upheld the Act of the legislature of Lower Canada. Below Brougham's opinion Stuart's Reports printed a further note perhaps by George Okill Stuart which sheds some light on the history of appeal limitations and also refers to elements of sovereignty and control in appellate review of colonial cases by English authorities:

  It would perhaps not be found inconsistent with the foregoing decision that an appeal might be allowed to His Majesty in his privy council, where the sum in dispute was less than 500 sterling, and where more than a year and a day had elapsed from the judgment in appeal which one of the parties is desirous of bringing under the revision of His Majesty in his privy council. It would seem that where the question arising upon the appeal from a sentence of a colonial court to His Majesty in his council, is one of ordinary municipal regulation, relating to the credibility or competency of particular witnesses, or to the weight of evidence, or to the regularity in point of form of the proceedings in the cause, or generally wherein the grievance complained of is applicable to the party appellant and confined to his cause, then the limitation of the right of appeal to certain cases in amount, would be followed by His Majesty in his privy council. And this not merely because the limitation in question was established by the colonial legislature but because such limitation is convenient and sanctioned by long usage, and the court of the King in council itself. Such a limitation has at all times existed in relation to appeals from the French Islands of Guernsey, &c. and in the old British colonies; and as to the latter it would probably be found that the limitation had been extended to them by analogy, from the practice which had long obtained as to the former, and to be traced to the power of entertaining or rejecting appeals from the colonies, according to a certain known practice which the supreme court of appellate jurisdiction has at all times exercised, and which, being the practice of that court, is the law of it. It is difficult to conceive any other reason why appeals from interlocutors rendered in the courts of the French Islands, and of the colonies, have been universally disallowed by the privy council, whilst appeals from interlocutors rendered in the Scotch courts have, in the cases permitted by law, been allowed by the house of lords. Appeals from Guernsey, &c. to the King in council, have in all cases exceeding 300 been allowed, and a like rule obtained in all the British colonies. In this view our provincial statute then in enacting that appeals to the King in council shall be only in cases above 500, cannot be said to have abridged, or attempted to abridge the appellate jurisdiction of that court.

  At the same time that such, it is apprehended, is the general rule, there is a class of cases which may perhaps not be comprised within it. --It seems to be essential to the maintenance of the imperium of a metropolitan state over its subordinate possessions, that the judicial pre-eminence should reside in the metropolitan state, and, therefore, that the right of judging in the last resort, as well in criminal as in civil matters arising in the colony, or subordinate state, should be held by the parent or metropolitan state: otherwise it would be in the power of the subordinate state, by judicial decisions, to undermine and ultimately to absorb the authority of the metropolitan state. It is in questions touching the relations , however remote, between the two states, --and the operation of the laws of the one within the limits of the other, and concerning in any way, however indirectly, the sovereignty of the one over the other,--that the acts of the colonial legislatures, must be interpreted, or if need be, controlled by the authority of the metropolitan state. And with respect to this class of cases, the King in council could and ought, it is conceived, to entertain appeals,--however small the sum in controversy might be,--if the cases were such as called for the interposition of the judicial authority. Thus, in the case of a decision in the colonial courts concerning the operation of the English bankrupt laws within the colonies: or, the statute of George the second, enacting that lands in the colonies should be seized and taken in execution as chattels, and that examinations taken before lord mayors of towns in Great Britain, shall in cases be received as evidence in the colonies,--or touching the prerogative, the ecclesiastical establishment, or connected in any other way with public laws,--appeals would probably be entertained by the King in council from the colonies. The above distinction appears sufficiently clear, and according to it the public convenience is consulted without any infringement of the right of the parent state&ldots;

30. Supra, endnote 14, March 30, 1875., 977

31. Ibid., 976. The following remarks of Cauchon are	

found at 977, those of Young are found at 978, those of Palmer are found at 978, those of Moss are found at 979 and those of Mackenzie are found at 979.

32. Supra, endnote 9, Dufferin - Carnarvon Correspondence. 143.

33. Supra, endnote 21, Stevens, 363; endnote 2, Monypenny and Buckle, 715; endnote 9, Bushnell, 28.; endnote 9, Farr 138. The full title of the Supreme And Exchequer Court Act was: An Act to establish a Supreme Court, and a Court of Exchequer, for the Dominion of Canada, 38 Vic c.11. The Exchequer Court had jurisdiction regarding laws related to revenue.

34. For the greatest detailed account of events in England and Canada see endnote 9, Farr, chapter five.

35. Public Record Office, U.K., 30/6/6, 36-7.

36. Supra, endnote 9, Underhill, 251-2.

37. Supra, endnote 32, 161, and the following two exchanges between Dufferin and Carnarvon are located at 162-3, and 167.

38. Supra, endnote 35, CO 42/738, 150. Section 43 of Macdonald's 1870 Bill for, "An Act to establish a Supreme Court for Canada" is printed in 6 Canada Law Journal N.S. 200 at 204.

39. Supra, endnote 32, 170-3.

40. Supra, endnote 35, CO 42/745, 334. Malcolm's amendments to the original draft despatch of January 1, are found at 330-3.

41. Supra, endnote 9, Underhill, 252.

42. Supra, endnote 35, 330.

43. Ibid., 332. And the following quotation is from the second leaf of 332. John S. Ewart in his book, The Kingdom of Canada, Imperial Federation, The Colonial Conferences, The Alaska Boundary and other essays. (Toronto: Morang & Co. Limited, 1908) at 226 and 228, attributes both of these passages to the Judicial Committee itself although he gives no legal citation for them and there does not seem to be a reported case which would confirm that the Judicial Committee authored the words rather than Reeves of the Privy Council. It may be that Ewart obtained these passages from Joseph Chamberlain's speech in the House of Commons on May 14, 1900 (endnote 1, forth series, Vol. 83, 64-5). Chamberlain attributed the first passage to a memorandum of the Privy Council. Chamberlain attributed the second passage again to the Privy Council and said in error that the matter of appeals to the Judicial Committee had been raised in 1875, "by the passing of the Act by which the Dominion of Canada was created&ldots;". The Dominion of Canada was created in 1867, the Supreme Court of Canada was created in 1875.

44. Ibid., 298. And the following quotation of Cairns' most significant addition to the draft memo is at 296. The final version of the memo which was sent to Canada with Reeves' memo from the Privy Council Office is found at 306-8. It contains many portions omitted by Cannon (Supra, endnote 29) including, surprisingly, all of the first page which contained Cairns' most significant addition to the memo, much of the second page, and parts of the third and fourth pages.

  Also, according to Underhill (endnote 9) the memo of Cairns and that of Reeves could be found in the Blake papers, 105:8. Underhill was writing in 1938. The Blake papers have now been moved to the Archives of Ontario from the University of Toronto and the memos are nowhere to be found. Mackinnon (endnote 9) writing in 1946 also said that the significant official correspondence regarding section 47 was contained in a 45 page manuscript in the Laurier papers Vol. 280, C.C.5. The Laurier papers are at the National Archives of Canada but do not contain the manuscript. Roanne Mokhtar, of the Archives, was kind enough to confirm this for me.

45. Supra, endnote 9, Underhill, 292; and endnote 35, c.o. 880 8. Cairns, it seems, had only to make argument that section 47was intended to refer to the proposed and then abandoned court of appeal (rather than the Judicial Committee) for Blake to agree to it and make this view his own in his letter to the Colonial Office of July 12, 1876.

46. Supra, endnote 21, Stevens, 358, footnote 95. The irony of Bowyer's inadvertently profound question is that it arose from his steadfast opposition to Cairns' and Selborne's efforts to end the appellate jurisdiction of the House of Lords (and the Judicial Committee).

47. During the summer of 1875 Lord Chancellor Cairns sat on an important imperial appeal from India. The views he expressed revealed his general concern for the preservation of the Crown as a symbol of British authority even at the expenses of British parliamentary democracy. In this case, Damodhar Gordhan v. Deoram Kanji (1876), I A.C.332, Cairns was quite extreme in the range he was willing to allow for the exercise of the royal prerogative. The dispute arose after the Governor General in Council authorized the transfer of certain British territories in India. The High Court of Bombay (manned with British personnel) decided that it was beyond the power of the british Crown to make any cession of territory without the concurrence of the Imperial Parliament. The Judicial Committee was able, after a rehearing, to find a way of concluding that the territories had in fact never been ceded and expressed grave doubts as to the soundness of the High Court's doctrine. At the original hearing Lord Chancellor Cairns was less delicate. When counsel contended that the Crown could not cede territory in time of peace Cairns' riposte was: "Surely there is plenum dominium unless you shew a limitation&ldots; Have you any any authority of any institutional [constitional?] writer commanding respect that the Crown has not the power?" 364. He added: "Lord Palmerston, who had great knowledge on these matters, stated broadly his opinion to the House of Commons that the Crown could cede territory of which it was the possessor. Have you any instance of an application to Parliament to authorize a cession?" 376. Finally when counsel posed the question, if the Crown can cede territory what becomes of the allegiance of the inhabitants of that territory? He stated: "If the Crown can cede, it can end the allegiance."

48. Supra, endnote 9, Underhill, 293.

49. Nadan v. The King, [1926] A.C. 482. This case decided that section 2 of the Colonial Laws Validity Act nullified section 1025 of the Criminal Code which prohibited criminal appeals to the Judicial Committee.

50. The relevant portions of the, "Colonial Laws Validity Act, 1865, An Act to remove Doubts as to the Validity of Colonial Laws" are:

  WHEREAS doubts have been entertained respecting the validity of divers laws enacted, or purporting to be enacted by the Legislatures of certain of Her Majesty's Colonies, and respecting the powers of such Legislatures; and it is expedient that such doubts should be removed:&ldots;

1. The term "colony" shall in this Act include all of Her Majesty's Possessions abroad, in which there shall exist a legislature as hereinafter defined, except the Channel Islands, the Isle of Man, and such territories as may for the time being be vested in Her Majesty, under or by virtue of any Act of Parliament for the government of India&ldots;

  An Act of Parliament, or any provision thereof, shall, in construing this Act, be said to extend to any colony when it is made applicable to such colony by the express words or necessary intendment of any Act of Parliament;&ldots;

2. Any colonial law, which is or shall be repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force or effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

3. No Colonial law shall be or be deemed to have been, void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation, as aforesaid.

51. Supra, endnote 35, CO 880 8. Cairns' memo is number 4 in a series of documents arranged according to a table of contents, printed originally for the use of the Colonial Office and entitled, "Further Correspondence respecting the Establishment of a Supreme Court and Court of Exchequer for the Dominion of Canada." Farr (endnote 9) in 1955 identified one of these documents as being located at CO 42/747, so apparently they have since been renumbered by the Public Record Office.

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