524
PUBLIC RECORD OFFICE
Reference :-
C.O.885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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assent of His Majesty's Government, it would be the cause of great satisfaction in the Straits Settlements, and I have no doubt in all other Crown Colonies.
I have, &c.
Enclosure in No. 19.
LEGISLATIVE COUNCIL.
Tuesday, March 5, 1901.
Present:
FRANK SWETTENHAM.
His Excellency the Officer Administering the Government (Sir Frank
Athelstane Swettenham, K.C.M.G.).
The Honourable the Acting Colonial Secretary (C. W. Sneyd
Kynnersley, C.M.G.).
The Honourable the Attorney-General (W. R. Collyer).
The Honourable the Colonial Treasurer (F. G. Penney).
The Honourable the Auditor-General (E. C. H. Hill).
The Honourable J. Burkinshaw.
The Honourable Lim Boon Keng, M.B., C.M.
The Honourable J. M. Allinson.
The Honourable W. J. Napier.
The Honourable T. E. Earle.
Absent:
The Honourable the Officer Commanding the Troops (Lieutenant-
Colonel W. H. Chippindall, R.E.).
The Honourable the Acting Resident Councillor of Penang (W. Egerton). The Honourable the Acting Resident Councillor of Malacca,
(E. M. Merewether).
The ÌIonourable the Colonial Engineer (A. Murray, C.E., M.I.C.E.). J. M. B. Vermont.
The Honourable J. Bromhead-Matthews.
•
**
"REPRESENTATION of CROWN COLONIES on the FINAL COURT OF APPEAL.
Mr. NAPIER: Sir, the next motion stands in my name. It is as follows:- That, in the opinion of this Council, it is expedient that in any reconstruction of the Final Court of Appeal from the Courts of His Majesty's Colonies provision should be made that one meinber of such Court be selected from the Judges or retired Judges of the Crown Colonies."
This motion, I am aware, is of a novel character, dealing as it does with legisla- tion which, I believe, will shortly be brought before the Imperial Parliament ; but it is legislation of considerable importance to the Crown Colonies generally, and to this Colony in particular. It is within the knowledge, I suppose, of all of us that last year in Parliament it was intimated that the present Government proposal to amalgamate the House of Lords with the Judicial Committee of the Privy Council, and thereby constitute a Supreme Imperial Court of Appeal, to have jurisdiction over all cases throughout Her Majesty's dominions; and it is with the object of putting before this Council what I think is the right of the Crown Colonies to be represented in this Court that I make my motion to-day. 1 shall have to trouble you, I am afraid, with a few historical details with regard to this matter, but I will be as brief with them as I can. I was reading the other day a paper on this subject, and the writer commenced with a learned disquisition showing how the House of Lords and the Privy Council were originally derived from one Court, the Curia Regis of Norman times. propose to skip the Curin Regis and to come into the present century, and merely remind you that, at the present time, the House of Lords is an Appeal Court as far as general cases in Great Britain and Ireland arù concerned, whilst the
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Judicial Committee of the Privy Council, which has jurisdiction in ccclesiastical matters and patent law in England, also forms the ultimate Court of Appeal for actions in India and the Crown Colonies.
Now, in the reign of William IV, an Act was passed remodelling the Privy Council, and by that Act the Judicial Committee of the Privy Council was constituted, and it was provided, firstly, that the members of the Privy Council who had held high judicial functions in the United Kingdom should still sit in that Court; and it was further provided (and this is what I want to note to-day), that there should be power for the Crown to appoint from the Judges, or retired Judges, of any of the Colonies, or of India, two members to sit on the Court, and out of Imperial funds was assigned the sum of 100% to each of these Colonial or Indian representatives. This certainly does not appear a large sum to keep up a house in town for a retired Judge, and it is scarcely surprising that in the early nineties the law on this point was altered, and provision was made for the whole sum of 800%, to be paid to one Judge. Now, although the Crown had the power to appoint either Colonial or Indian Judges, still I think I· am right in saying that a Colonial Judge was never appointed, and that the seat has always been held by an Indian Judge-at the present time the stipend being drawn by an ex-Chief Justice of Bengal. But the increasing interest in Colonial affairs, and the increasing amount of litigation which was brought to the Privy Council, rendered some change necessary for the further representation of the Colonies on the Privy Council, and in the year 1895 a further Act was passed, whereby the Crown was empowered to appoint the Judges of any of the Colonies to scats on the Judicial Commission, they, of course, being appointed Privy Councillors. But there was this distinction, that no salary was attached to the offices; perhaps it was thought that the Colonies who were thus honoured would provide the salaries; so far, they have not done so, and although three Judges-Sir Samuel Way, the Chief Justice of South Australia; Sir Samuel Strong, the Chief Justice of Canada; and Sir John de Villiers, the Chief Justice of the Cape of Good Hope--have been appointed to sit upon the Privy Council, still no salary has been provided by their Colonies, with the consequence that they can but seldom take their seats upon the Privy Council, and with this disadvantage, that a number of the cases coming before the Judicial Committee had already been dealt with by them in their judicial capacity in the Colonies. Now, when last year, that great piece of legislation, the Commonwealth of Australia Bill, a fitting memento of Her late Majesty's reign was brought in, of course the whole question of the Court of Appeal from the Colonies was revived and much discussed. You all of you are doubtless familiar with the famous Clause 74, which was discussed at great length, and you all doubtless have forgotten it, equally with myself, at the present time. But there was one matter which came forward, and which, I think, stuck, if I may use the word, and that was a great feeling in the Empire that an ultimate Court of Appeal, a Supreme Tribunal at home, should be retained to serve as a golden link of the Empire; and with this view in mind, and having in view the fact that so far the attempt to place Colonial Judges upon the Privy Council had proved not altogether satisfactory, Mr. Chamberlain in his speech on the first reading of the Bill to which I have referred made a proposal, which proposal was shortly this, that four Julges should be appointed to the Judicial Committee of the Privy Council, and that they should receive very handsome salaries, which would be paid out of Imperial funds, that they should be made life Lords, that they should retain office for seven years, and that they were to represent India, Australia, Canada, and South Airica, respec- tively. Now, at that time, as I have pointed out, constitution-making was in the air, and there being a chance of the reconstruction of the final Supreme Imperial Court of Appeal in England, this proposal of Mr. Chamberlain's was withdrawn. The reason for its withdrawal, as set out by him in the House of Commons on the 2nd July last, was this, that the Australian Delegates had suggested it in order that the Government might, in consultation with the Colonies, consider the question of a Tribunal for the whole of Her Majesty's dominions, and the Secretary of State then added "that the Government would take the earliest opportunity of consulting with the Colonies, including, of course, Canada and New Zealand, with regard to the appointment of a permanent Court." I think, then, I have satisfied you that legislation on this subject is in contemplation. You will notice that the Secretary of State said nothing at all in that statement of his with regard to the Crown Colonies; and it is in order that this matter may be brought in somie mamer before the Secretary of State, and in order, if this Council accepts my resolution, and that resolution appeals to the Secretary of State, that it may be adopted, that I bring this motion forward. My proposal, it appears to me, is an eminently modest one; it is not going in for