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generally, any other written document. Yet unless there is already some authoritative construction in existence, this is pure matter of fact. Hence that great department of case law which has its origin in the judicial interpretation of statute law. The general rule-consistently acted on, though seldom expressly acknowledged-is that a judge will not submit to a jury any question which he is himself capable of answering on principle. question he answers for himself. For since it can be answered on principle, it provides a fit occasion for the establishment of a precedent and a new rule of law. It ought to be a matter of law, and can only become what it ought to be, by being kept from the jury and answered in abstracto by the judge. The only questions which go to a jury are those questions of fact which admit of no principle, and are therefore the appropriate subject-matter for those concrete and unreasoned decisions which juries give.
I have said that this rule, though acted on, is not expressly acknowledged. The reason is that judges are enabled to avoid such acknowledgment through recourse to the declaratory theory of precedent. As between judge and jury this theory is still in full force and effect, although when the rights and privileges of juries are not concerned, the courts are ready enough at the present day to acknowledge the essential truth of the matter. As between judge and jury, questions of fact are withdrawn from the exclusive cognizance of the latter by means of the legal fiction that they are already questions of law. They are treated as being already that which they are about to become. In a completely developed legal system they would be already true questions of law; the principle for their decision would have been already authoritatively determined. Therefore the judges make bold to deal with them as being already that which they ought to be, and thus the making of law by way of precedent is prevented from openly infringing upon the rights of juries to decide all questions which have not been already decided by the law.
JOHN W. SALMOND.
ENGLISH JUDGES AND HINDU LAW.
S the tribunal known as the Judicial Committee of the Privy Council is attracting considerable attention at the present moment, a little sketch of its history will be interesting and, perhaps, instructive.
The Judicial Committee of the Privy Council was formed in 1833 by Act of Parliament, 3 & 4 Wm. IV. c. 41. By s. 1 the members of the Privy Council who held or had held the offices of President of the Council, Lord Chancellor, Lord Keeper, or First Commissioner of the Great Seal of Great Britain, and those members who were or had been judges of either of the Superior Courts of Law or Equity in England, together with any other two members of the Privy Council who might be appointed for the purpose by the Crown, were formed into a committee to be called the Judicial Committee of the Privy Council, to be a tribunal to hear appeals to His Majesty in Council from the Courts of Admiralty, and the various courts in the East Indies and the plantations, colonies, and other dominions of the Crown abroad, from which an appeal lay to the King in Council, and to report and make recommendations thereon to His Majesty.
By s. 5 the Committee were prohibited from making any report or recommendation unless four members of the Committee were present; and by the same section power was reserved to the Crown to summon any other members of the Privy Council to attend the meetings of the committee.
S. 30 provided that two sums of £400 a year each, out of the consolidated fund, might be paid to two privy councillors, who had been Indian or colonial judges, who might, on the appointment of the Crown, attend the sittings of the Committee.
Persons who attended the sittings of the Committee either under the power reserved by the latter part of s. 5 or under the provisions of s. 30 were not members of the Committee, and could not, of course, be reckoned in order to make up the number of four members required by the first part of s. 5.
By an Act passed in 1844, 7 & 8 Vict. c. 49, the jurisdiction and powers of the Judicial Committee were extended, but its composition was not changed.
On February 3, 1844, Mr. T. Pemberton Leigh, an English
lawyer, was appointed a member of the Committee, without pay, under the last clause of the first section of the Act of 1833. He was afterwards created Lord Kingsdown, and remained an active member of the Committee until 1865.
On March 9, 1850, Sir Edward Ryan, who had been Chief Justice of the old Supreme Court at Calcutta, was appointed either under the last clause of s. I or under s. 30.
By an Act passed in 1851, 14 & 15 Vict. c. 83, a Court of Appeal in Chancery was created, and by s. 15 its judges were, if privy councillors, made members of the Judicial Committee.
On November 23, 1865, Sir Edward Ryan resigned, and Sir James Colvile, who had also been Chief Justice of the Supreme Court at Calcutta, was appointed to attend the sittings of the Committee under s. 30 of the Act of 1833.
Sir Lawrence Peel was on June 23, 1858, appointed to attend the sittings of the Committee under the same section, and did so until December 1, 1874. Lord Kingsdown continued to attend the sittings of the Committee until the summer of 1865. He died in 1867.
On February 2, 1869, Sir Joseph Napier, who had been Lord Chancellor of Ireland, was appointed a member of the Committee under s. 1 of the Act of 1833.
On August 21, 1871, Her Majesty was, by statute 34 & 35 Vict. c. 91, s. 1, empowered to appoint, within twelve months, four persons who were or had been judges of one of the Superior Courts of Law or Equity in England, or a Chief Justice of Bengal, Madras, or Bombay, to act as members of the Judicial Committee at salaries of £5,000 a year each, and to fill up any vacancies in their offices which might occur within two years. Under this Act Sir Montague Smith and Sir Robert Collier, who had been judges of the Court of Common Pleas in England, Sir Barnes Peacock, who had been legal member of the Viceroy's Council and the first Chief Justice of Bengal, and Sir James Colvile, were appointed to act as members of the Judicial Committee.
On November 24, 1871, Sir Mountague Bernard, the first Chichele Professor of international law at Oxford, was appointed an unpaid member of the Committee under s. 1 of the Act of 1833.
In 1876, by the Appellate Jurisdiction Act, 1876, 39 & 40 Vict. c. 59, Her Majesty was empowered to appoint four Lords of Appeal in Ordinary, who should aid the House of Lords in the hearing of appeals, and who should also, if privy councillors, be members of the Judicial Committee, and, subject to the due performance of their duties as Lords of Appeal in Ordinary, should sit and act as members of the Judicial Committee.
At the time when this Act was passed the time within which any further appointment to the Judicial Committee could have been made under the Act of 1871 had expired.
S. 14 of the Act of 1876 provided for the attendance at the Committee of such archbishops and bishops as were privy councillors as assessors on the hearing of ecclesiastical cases.
S. 5 provides that an appeal shall not be heard by the House of Lords unless three persons who answer to certain descriptions are present. Among such persons are such peers of Parliament as are for the time being holding, or have held, any of the offices in the Act described as high judicial office; and by s. 25 'high judicial office' includes, inter alia, the office of a paid judge of the Judicial Committee of the Privy Council. No Indian or colonial expert has ever been appointed under this Act, and the four appointments are now held by one Scottish and three English lawyers.
At the end of 1880 Sir James Colvile died, and early in 1881 Sir Mountague Bernard and Sir Joseph Napier resigned.
On January 21, 1881, Sir Richard Couch, who had been Chief Justice of Bengal, was appointed an unpaid member of the Committee under s. 1 of the Act of 1833; and on March 2, 1881, Sir Arthur Hobhouse, an English barrister who had been legal member of the Viceroy's Council in India, was also appointed an unpaid member under the same section.
In 1881, by 44 Vict. c. 3, s. 1, every person who held or had held the office of a Lord Justice of Appeal was, if a member of the Privy Council of England, made a member of the Judicial Committee.
In 1887, by the Act 50 & 51 Vict. c. 70, s. 4, any person who should attend the sittings of the Judicial Committee under s. 30 of the Act of 1833 was made a member of the Committee for all purposes, and when there was only one, such person was to be entitled to receive the whole of the sum provided by that section, that is to say £800 a year; and by s. 5 the expression 'high judicial office,' for the purposes of the Act of 1876, was made to include the office of any member of the Judicial Committee of the Privy Council. After the passing of this Act Sir Richard Couch resigned his original appointment, and was reappointed under 8. 30 of the Act of 1833 and s. 4 of the Act of 1887.
Sir Barnes Peacock died in 1894.
In 1895 colonial judges, to the number of five, were by 58 & 59 Vict. c. 44, s. 1, if privy councillors, added to the Committee. Under this Act Sir Henry Strong (Canada), Sir Henry De Villiers (Cape Colony), and Sir Samuel Way (Australia) are now members of the Committee.
On February 13, 1896, Lord James of Hereford was appointed
an unpaid member of the Committee under the last clause of s. I of the Act of 1833.
The fluctuation of opinion as to what amount of Indian and colonial experience or information should be available for the purpose of the Committee has been remarkable. For thirty-eight years, from 1833 to 1871, two paid assessors who had been Indian or colonial judges were provided for, and it is worthy of note that during that time the reputation of the Judicial Committee rose to its greatest height in India, and gained the entire confidence of the Indian people. It is true that during some of those years Lord Kingsdown, who was a really great judge, took a very active part in the hearing and decision of Indian cases, and showed a serious and sympathetic interest in Indian laws and customs; but he had the assistance of Sir Edward Ryan, Sir James Colvile, and Sir Lawrence Peel as assessors, and it may be that the provision that Indian or colonial judges should attend the meetings of the Committee, not as judges but as assessors, was more wise and foreseeing than it has appeared to later legislators. Both Hindu and Mohammedan law may be roughly described as consisting of the precepts of the sages as interpreted by the customs of the people, and every one who has had experience of India knows that instances constantly occur where it is difficult, if not impossible, to ascertain from books what the customs of the people in some particulars are. In India English judges can consult their Hindu or Mussulman colleagues, and those who are members of the Civil Service have themselves had large experience of the people and their customs; but a judge in England is very differently situated, and from his position as a judge is precluded from himself making inquiries which an assessor, whose only duty was to inform the judge, might make without loss of dignity.
In 1871 the policy of appointing assessors was abandoned in favour of making the Indian experts members of the Committee, and Sir James Colvile and Sir Barnes Peacock obtained seats on the Committee at salaries of £5,000 a year. This system lasted for five years, until 1876, when it was swept away by the Appellate Jurisdiction Act. Upon the death of Sir James Colvile in 1880 it appears to have been thought necessary to add another Indian expert, and Sir Richard Couch was made an unpaid member, and so continued until 1887, when assessors were abolished by statute, and he became entitled to a salary of £800. Since the death of Sir Barnes Peacock he has been the only Indian expert available, and has alone performed the duties which had been at various times and in different capacities performed by Sir Edward Ryan, Sir James Colvile, Sir Lawrence Peel, and Sir Barnes Peacock.