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PUBLIC RECORD OFFICE

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C.O.885

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PUBLIC RECORD OFFICE, LONDON

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if a lawyer of practical experience of the application of Roman Dutch law in the litigation which might come before him had a seat on the Judicial Committee of the Privy Council; it is felt that the proposal which was made a few years ago by which the Chief Justices of four Colonies, I think, are appointed to seats on the Privy Council was a step in the right direction. It was also felt that the measure would not have the good effect which it was hoped it would have, because of the dual charaeter of the appointment, and certainly that the judicial duties discharged by those gentlemen on the Privy Council were secondary to their legal duties, and in that way the Privy Council did not derive, as it was thought, the advantage which it was thought it would derive from the accession to its ranks of gentlemen possessing a knowledge of Roman Dutch law as administered in the South African Colonies. If it were made a permanent appointment for a certain period it may be, or even for life, his first duty would be to attend to the Judicial Committee of the Privy Council instead of being, as it is at present, a secondary duty-secondary to the duties which he discharges as Judge at the Supreme Court of the Colony. Natal, at any rate, does not desire that the House of Lords should be made the Appellate Tribunal of the Colonies. It regards the appeal to the Sovereign direct, advised as he has to be by a Judicial Committee on all questions, as appealing strongly to the natives. There might be some definite Department by which the Committee acts as assessors to the Sovereign and advises him on appeals from Natal or South Africa generally which might deal, so to speak, with the legal questions as they arise there. One of the speakers to-day referred to the delays which occur. As far as my experience goes, those delays are due to rules which allow a somewhat disproportionate time for the various steps which have to be taken in appeals before the Judicial Committee of the Privy Council, and it does occur to Natal that with the increased facilities for communication which now exist between London and the outlying parts of the Empire, the various periods which are allowed under the rules for the prosecution of the appeals might be more or less shortened, and in that way Judgments might be delivered more quickly. It has been suggested, and I do not hesitate to make the suggestion, because I am instructed to do so, that the appointment of local men on the Privy Council might be from the Bench of certain Colonies, and if the period were for one year permanently or five years permanently those appointments should be made from the local Bench from the several Colonies which might be selected. Whether such a Judge should be confined to appeals from his own Colony where the same system of law is administered or whether he should take his share of the work of the Judicial Committee of the Privy Council generally is a matter of detail which might be discussed afterwards. Mr. Rose Innes pointed out that he thought the limit of appeal was too low. That is so. From Natal and Cape Colony at the present time an appeal may be brought where the sum in dispute is 5001

As far as Natal is concerned we rather think that should be reduced than increased, and that it should not be necessary always to apply for special leave to appeal to the Privy Council because the amount in issue may be somewhat less

than 5007.

The LORD CHANCELLOR: Would you suggest any other limit ?

Mr. W. B. MORCOM: I have instructions on that point my Lord. I should think that the sum of 2501, is not too low to fix.

The LORD CITANCELLOR: You still would have a limit; you would not have an appeal as of right in every case however trifling.

Mr. W. B. MORCOM: No, my Lord, I think there should be a right as at present

of getting special leave to discuss an important point of law.

The LORD CHANCELLOR: Yes, I quite understand.

Mr. W. B. MORCOM: But I would allow an appeal as of right to the Judicial Committee of the Privy Council in any case where the amount was 2504, or 300/. I think; some do prefer 3001.

The LORD CHANCELLOR: Yes.

Mr. W. B. MORCOM; I think these are the only points I have to submit.

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I did not

The Right IIon. J. CHAMBERLAIN: Did you say anything. quite catch, on the question of whether the Colonial Representatives, if they came over here, should be made peers ?.

Mr. MORCOM: I thought that was met logically by the view which Natal takes that the House of Lords should not interfere judicially with the appellate questions from the Colonies.

The ATTORNEY-GENERAL: Would you contemplate that these appointments should be renewed at the end of the time of the same person ?

Mr. MORCOM: The idea is that they might be so; the idea is that they should be fixed and the difficulty of giving a temporary appointment to an office held during good behaviour seems to be got over by the selection being made from a class of men who already hold office during good behaviour. They are only temporarily taken from that office, and they still continue to hold that office which would still be their permanent office. They are only transferred to another Judicial Court temporarily. They would still hold office during good behaviour. That seems to get over the difficulty; that the temporary appointment of a Judge is undesirable, by confining the appointment to a class of officers who hold office during good behaviour.

The ATTORNEY-GENERAL: Still he might prefer one branch of employment

to the other, and if the appointment were renewable at the end of the term it might remove some of the objections.

Mr. MORCOM: It might.

The SOLICITOR-GENERAL: There would be a greater difficulty in getting first-rate men as they would have to be a transference from direct employment.2 Supposing we have a man as you suggest, it is not every man who could come to exercise an appellate jurisdiction temporarily.

Mr. MORCOM: They would be taken from the Supreme Court of the Colony, If we take South Africa: supposing South Africa held the title in conjunction with other Colonies to provide a Representative, versed in Roman Dutch law, on the Judicial Committee of the Privy Council, there are several Courts in South Africa at the present time from which such a Judge could be taken.

The SOLICITOR-GENERAL: Each year?

Mr. MORCOM: Each year. If such a man as the Chief Justice of Cape Colony ́discharges his duties in the Judicial Committee of the Privy Council in preference to his work in the Supreme Court at the Cape, we would be satisfied with such an appointment of a Dutch lawyer on the Committee.

The SOLICITOR-GENERAL: The only point I was putting was if you made it annual you might not get so good a man every year if you made a change.

MR. MORCOM: That is so. Of course I do not limit it to one year; perhaps five years would be a better time.

His Honour Mr. Justice GEORGE HENRY EMERSON: After the observations which have been made, I have very little to add. * The position so far as our Colony is concerned, is one of considerable difficulty. We have had very little dissatisfaction with the Privy Council except on the one point which has been touched upon by Mr. Rose Innes, that is that the decisions are not like those of the House of Lords, and that we have not been enabled to see the reasons. It would be a greater satisfaction to us to have the judgment of the House of Lords where every member who sits and hears the arguments expresses his opinion, but I have no instructions from the Government who sent me here. I presumed that they would give me instructions upon this matter because, although, as the Minister of Justice in the Dominion Cabinet of Canada has said, he represents his Government and his people, I hardly think that the Government and the people are exactly the judges who would be the best for an appellate Tribunal, Besides, in

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