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PUBLIC RECORD OFFICE

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LTLIC.O.885

سل سلسا

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO

PUBLIC RECORD OFFICE, LONDON

If, as I hope, they are determined to send Australian Delegate, please telegraph earliest possible date at which he can arrive, as Conference must meet early in the

summer."

April 30, 1901,

23781.

SIR.

No. 37.

HOPETOUN,

Governor-General.

MR. HENRY HODGES TO MR. CHAMBERLAIN. (Received July 10, 1901.)

་

Victoria Office, 15, Victoria Street, Westminster, S. W., July 9, 1901.

It is with very great regret that I find myself unable to agree with the recommendations of the majority of the Delegates and that I am consequently constrained to criticise the conclusions at which they have arrived. The importance of the subject, and my duty to the Government and country of Australia must be my excuse for troubling you with somewhat lengthy observations.

The main object of the first Recommendation is to assert the desirability of maintaining two Courts of Final Appeal, and that Indian and Colonial Appeals should be dealt with by the Privy Council. To this I object:

1. Because of the danger of inconsistent and conflicting decisions by two Tribunals, cach final, and the uncertain and unsatisfactory state of the law that would result therefrom.

2. Because there is a feeling that the home Tribunal

favoured at the expense of the Indian and Colonial one, and because the legislation on this subject to some extent justifies the feeling.

3. Because even if legislation left perfect equality, the Lords of Appeal in ordinary would naturally be more interested in questions arising in the United Kingdom than in those arising abroad, and would decide any doubt as to which Court required their presence in favour of the home Tribunal.

4. Because even if there could exist absolute impartiality in this respect, there is likely to be some distrust; and possibly there will be some suspicion that the home Tribunal is getting most attendances from the best men.

5. Because as long as these Tribunals remain separate it is difficult if not impossible to provide satisfactorily for the appointment of Indian and Colonial exports.

6. Because the Privy Council is a Board and not a Court. I should further add that as legislation is desired and expected by the majority on this subject, care should be taken that the Legislative rights or Judicial power of the Commonwealth of Australia are in no way impaired thereby.

As to the second Recommendation, I am sorry that some of my obscrvations may appear mere verbal criticism; but the sea of uncertainty created by this suggestion is so inextricably interwoven with the particular language used, that it cannot be avoided. To this recommendation I object because :-—

1. In the first place it expresses no opinion as to any present need, as to whether any appointment is or is not desirable at the present time.

2. In the next place it only asserts an appointment to be desirable when it is considered necessary.

3. In the next place it contains no suggestion as to the person or persons who must consider an appointment necessary before the Delegates consider it desirable, nor does it contain any suggestion as to, by whom or on whose nomination the appointment should be made; the recommendation simply asserts that when the appointment is considered necessary by some unknown quantity, it is desirable that that appointment should be made by or on the nomination of that or some other unknown quantity.

If the India Office consider any appointment necessary, is the Lord Chancellor to appoint ?

4. Again, legislation will be necessary to give effect to this recommendation. If this is done by one Act, then some person or persons will be practically carrying about

in his or their pocket an indefinite number of high judicial appointments, such appointments to be made from time to time. This would expose such person or persons to continual pressure from or on behalf of each or every one of the countries mentioned, and every appointment would probably cause dissatisfaction to every country, except the one that secured the appointment; and cach country pressing for an appointment or for appointments and not obtaining its demands would be in a more or less irritable condition. On the other hand, if it is intended to attain the object by a series of Acts of Parliament, then although the above observations apply only to a modified extent, there would be the additional uncertainty that Parliament might at some stage decline to go further,

5. It seems to me almost impossible to constitute a satisfactory Court of Appeal under this recommendation. If only four appointments were made under it, it is probable that on the hearing of any appeal a majority of the Board would consist of persons expert on laws foreign to the United Kingdom and to the Court from which the appeal comes. If more than four appointments were made the danger would be greater. If less than four were made soine important country would be left without an expert in its laws in the Court of Appeal.

With Recommendations 3 and 4 I entirely concur.

With Recommendations 5 and 6 1 should agree in all probability if the provisions

as to appointment were more definite.

With regard to 7 and 8 I neither concur nor differ. The materials on which an opinion could be formed have not been before me.

I presume it is now my duty to state what in my opinion is desirable, and shall do so in the fewest possible words, not making even a complete skeleton, since at present no result can follow. In my opinion it is desirable :-

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1. That there should be only one Court of Final Appical.

2. That this Court should have vested in it the appellate jurisdiction of the House of Lords and of the King in Council (except perhaps ecclesiastic appeals).

3. That such Court be styled “His Majesty's Imperial Court of Final Appeal.”

1. That the first members of the Court be:-

(.) The Lord Chancellor, President.

(6.) The Lord Chief Justice.

(c.) The Master of the Rolls.

:

(A) All present members of (what for brevity I may call) the Judicial Committee,

of the House of Lords.

(e) All present members of the Judicial Committee of the Privy Council.

(f.). One person appointed by the Lord Chancellor for each of the following places:—

India. Canada.

South Africa. Australia.

5. That such Court be authorized for the dispatch of business to sit in two divisions, one Indian and one Colonial in one division, and two Colonial in the other division; that four members form a quorum.

6. That in listing causes care should be taken that cach cause is listed in the division in which the expert in the laws of that cause is sitting.

7. That in any case of exceptional difficulty or of differing opinions the Lord Chancellor should have power to require the members of both divisions to sit together to hear and determine such case.

Without touching the vital principle of these suggestions (the first suggestion), a scheme might be worked out which would result in—

(1.) The formation of an entirely new Court;* or

(2.) The absorption of the appellate jurisdiction of the House of Lords by the Privy Council; or

(3.) The absorption of the appellate jurisdiction of the King in Council by the House of Lords;

and, as far as I can see, there are no insuperable constitutional difficulties in the way of the third result. The Colonial members could have a writ of summons to tho House of Lords for judicial purposes only. A form might be given to the procedure that would satisfy all the foreign elements in the Empire. Such a Court would bring the best legal thought in the United Kingdom in touch with the best legal thought in the Empire outside the United Kingdom. It would be a wonderfully strong Court,