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The highest court of appeal for the British colonies is the " Judicial Committee of Her Majesty's Privy Council, commonly called the “ Privy Council". This supreme tribunal is composed of the Queen and of a certain number of judges, whose duty is to hear cases submitted to them, and to advise Her Majesty as to the decision which she should give according to law and equity. Although the Queen is never present at the hearing, or at the rendering of judgments, she is considered, by a fiction of the law, as present and presiding over the court, and the Lords, sitting as judges, are only Her advisers. Therefore, when their Lordships deliver judgments, they merely state their reasons, concluding that the Queen should allow or refuse the appeal. The text of the judgment is published afterwards by a special ordinance of Her Majesty.
The appeal to the Privy Council is either de plann or by special leave. The first is regulated by colonial statutes or by special charters to courts of Justice. The application is made to the court appealed from, which is called upon to decide whether the cause is within the appealable value or is an appealable grievance. In such case, the application is granted as a matter of course. Special leave to appeal is entirely in the discretion of the Judicial Committee. The Queen as the “Fountain of Justice” may hear, by Her Privy Council, an appeal from any judgment of the colonial courts or judges, although not appealable under the law. This is one of the most ancient and precious of the prerogatives of the Crown.
This legal jurisdiction over the colonies, gives to the Privy Council great powers and influence over
our persons, property and institutions, inasmuch as its decisions are naturally the standard of the jurisprudence of the lower courts, and determine the rules for the application of the civil, criminal and other branches of the law.
This should be sufficient to induce every one, especially the members of the legal profession, to become acquainted with the jurisprudence and practice of this tribunal. But without a digest, it must be admitted, this study presents great difficulties. How can a particular case or a special subject be found, without great loss of time, when the decisions are scattered over a great number of volumes ? and yet no special digest has ever been made for the Privy Council
. It is to meet this much felt want that this book is offered. The form adopted is an improvement on ordinary digests, inasmuch as it gives more than the usual head notes. It is made in alphabetical order, and contains all the decisions of the Privy Council, omitting only the ecclesiastical cases and those of a very local and private character. With the decisions, the date of judgments are given, references are made to the full report and to the names of the courts appealed from ; the remarks of their Lordships referring to the principles of law which govern the cases heard are also reported.
The introduction to the book is a sketch of the history of the Privy Council, and may be found interesting as showing briefly how it became an English institution and a court of justice.
The Judicial Committee was created in 1833, by 3rd and 4th William IV. Since that time, this statute has been so amended as to render our notes on it very useful to the understanding of its present constitution and jurisdiction.
The procedure in appeals to the Judicial Committee is very simple. It is contained in a summary showing how an appeal is taken and brought to a hearing, and comprising the rules of practice published by their Lordships.
We have annexed to this book three appendices. The first contains the names of all the British colonies with the indication of the nature and origin of their civil laws. This table is useful as showing the value to be attached to a decision in any particular case ; as the principles laid down in an appeal from one colony may be applicable in another appeal from another colony according to the parity of their laws. The second contains notes of all the decisions of the court of Queen’s Bench (appeal side), for the Province of Quebec, rendered under the articles of the Code of Civil Procedure on appeals to the Privy Council. They are of great importance, and we may add final, as the Judicial Committee has declared the court appealed from to be the sole authority to decide questions of procedure, such as the giving of security in appeal, preliminary to the introduction of the appeal into the Registrar's office, in England. The
third is a double alphabetical table of the cases reported in this volume.
This work, therefore, is submitted in the hope that it will prove useful to the legal profession, in the arduous task of searching for precedents and authorities. If it serves this purpose, it will have attained the desired end, and the author will have accomplished his object.
Montreal, 1st May, 1891.
J. J. BEAUCHAMP.