In Canada the same variety in unity prevails. Each province feels safe. In 1774 the Quebec Act provided that in civil matters the old laws of Quebec should still apply. Among these were "First, the couturnes de Paris and the ordinances in force within the jurisdiction of Paris; second, the arret du conseil du z-oi and the ordinances published between 1663 and 1763." In short the legal situation in those respects in Quebec is that of Paris prior to the French Revolution, whereas in the other provinces the basis of law is the common law of England. Each province of the Great Dominion developing its own provincial legislation, must have its statutes recognized by the Central Powor and stands by its own system. The lines of function and jurisprudence of the provinces may thus differ from each other and each and all from the Domin ion itself. The resultant conflicts arouse in many cases the keen est feeling and these have been brought for settlement to the bar of the privy council administering and interpreting the law as laid down in the Act of 1867. These illustrations of variety in unity evolving into an imperial harmony need not be multiplied.
This principle of resolute and harmonious accord with local tra dition, creed and custom extends as has been indicated even to the adoption and administration of whole systems of jurisprudence. As first noted, within Canada itself the range extends from mod ern English law to ancient French. Again, over no inconsiderable part of the empire it is a fact that Roman-Dutch law holds sway.
This is shown in parts of the empire so wide apart as South Africa, Ceylon and British Guiana. Space foebids a further enumeration but sufficient has been said to indicate the stupendous difficulties which have to be overcome by this resolute respect for colonial and Indian jurisprudence. It is from quarters in which these difficulties have to be daily surmounted (Quebec and the empire of India being cited as examples) that the firmest support comes for the upholding of the dignity and jurisdiction of the Council as now existing.
This finally raises a problem as to future constitutional develop ment. It is acknowledged that the rational foundations of the jurisdiction and administrative power of the judicial committee rest upon fundamental ethical principles which, finding varying expression under varying systems, are yet essentially the same. Simple illustrations occur such as these : that under the Roman Dutch law one would naturally cite the old maxim, sic utere tuo ut alienum non laedas; when, in India, embarrassment is caused by the apparent failure to reach a common ground of principle, resort is had to "justice, equity and good conscience," and this principle finds its place in every Indian textbook; in Canada, the British North America Act expressly confers upon the Dominion confronted with provincial demands the province of preserving "peace, order and good government." Apart from these instances,
no jurisprudence fortified by centuries of tradition can be finally found to rest on foundations less sure than the recta ratio of Cicero, the righteousness of ancient, and the justice tinctured with toleration of modern times.
Two points in conclusion may be noted. Section 4 of the Act of 1833 has been already cited, providing for a reference to the judicial committee of any such other matters as his majesty shall think fit. This nebulous and almost all-embracing provision has in spirit been followed in Canada by a reference to the courts of abstract questions for a guide to Government in its administrative policy. It must be said frankly that such provisions are received by courts, including the committee itself, with the greatest caution, for the simple reason that judicial tribunals should not be set to abstractions but to problems which have actually arisen and upon which in foro contentioso parties have argued out their differ ences. To forsake this principle would tend to turn a judicial tribunal into a mere philosophic academy. As a last resource how ever this branch of the prerogative may have to be resorted to. This was done in reference to the settlement of claims of com pensation for civil servants who under statutory cessation of their British employment entered the service of the Irish Free State. A decision in a certain sense had been given by the privy council and had been challenged by the Free State, and thereupon s. 4 of the Act of 1833 was put into operation, substantially to recon sider a decided case. In these columns no discussion of such a point would be either possible or proper.
The rules of procedure and general methods of the conduct of business by the committee are found in books of practice.
(SH.)