CHAPTER XI.

OUR JUDICIAL SYSTEM.

We have thus far treated of government as divisible into two chief departments-law-making and law-executing -and have not deemed it expedient to complicate the discussion by reference to any further sub-divisions of these two departments. There is however a very distinct division of the executive department into branches, administrative and judicial; the former concerned with what we may call the ordinary administration of public affairs, while upon the latter devolves the duty of expounding, applying and enforcing law between litigants (@).

Tribunals for the administration of justice are an indispensable adjunct of any system of civilized government, and if there can be degrees of importance in connection with such a matter, we would say that in every country where government is a government-according-to-law, due recognition of the authority of the courts is of vital importance to good government; and particularly is this the case where the field for the exercise of the functions of government, both legislative and executive, is divided, and

(a) Of late years there is apparent a tendency to clothe the judiciary with what may be termed "advisory" functions, in aid of the Executive. See R. S. C. c. 135, ss. 37 and 38, and cases noted in Cassel's Dig.; R. S. O. c. 44, s. 52, s-s. 2; Attorney-General for Canada v. Attorney-General for Ontario, 20 O. R. 222; 19 O. R. 31. Also see R. S. O. c. 225; In re R. C. Separate Schools, 18 O. R. 606. The policy of this innovation is questionable. The Courts of the United States have steadily declined to exercise any such functions. See Mich. Univ. Law Lectures, 1889.

where, in consequence, the courts have necessarily to decide. on the validity or invalidity of legislative enactments, and of executive action founded thereon (b).

The decision of any case which may come before a court of law, involves the application of law to the facts as they may be admitted, or judicially determined, to exist. Out of every fact, or set of facts there arise "legal relations," and, as was pointed out in the last chapter (c), there can be no conflict of law in reference to any given legal relation, for the law applicable to any given circumstances— to any stated facts-is presumedly capable of definite exposition. It may happen, therefore, that in a case arising in a Canadian court, the law which governs the legal relations which arise out of the facts of the case may be, not the law laid down in either Dominion or Provincial statutes; not, strictly speakly (d), the law of Canada at all; not even Imperial law; but the law of a foreign country. In accordance with that comity between nations, which is now recognized by the tribunals of all civilized countries, those tribunals do not, where the facts out of which the litigation arose occurred in a foreign country, limit the enquiry to what is the law which would govern in case those facts had occured within its own territory. Indeed, in criminal matters, that is to say, where a person is being prosecuted for acts committed abroad, English courts have laid down the rule that such prosecution can only be had in the country where the crime was committed. The administration of international justice, if we may use the expression, is secured in such a case, by handing over the alleged offender to the officers of the country in which the offence is alleged to have been committed; and the jurisdiction of English tribunals has been limited to a preliminary enquiry as to the existence of a prima facie case. With regard to civil matters, the tribunals of most civilized states do not (b) See ante, p. 172. (d) In a sense, the rules of international law are part of the jurisprudence of nearly every civilized state.

(c) See ante, p. 214.

recognize any such local venue for their trial. It is beyond the scope of this work to enumerate the various conditions precedent to jurisdiction, laid down in the jurisprudence of the different civilized states, but in all such actions as the courts do entertain, they give effect to legal rights and obligations which may arise out of transactions occurring abroad; and it may happen, therefore, that any modern tribunal may be called upon, at times, to determine, and practically to administer, the law of a foreign country (e).

Every tribunal is, in a sense, subject to territorial limits of jurisdiction. It would be inconsistent with the sovereignty of the different states into which this world is divided, were the judgments of the courts of any one state. enforcible, proprio vigore, in the others. But, even within the same state, the territorial jurisdiction of courts of law may be limited. Their jurisdiction, too, may be in many other ways limited and defined, by reason of the subject matter in litigation. Some courts may have jurisdiction over all classes of matters, and throughout the entire territory of the state; others again may have the same wide territorial jurisdiction, but may be restricted to matters of minor importance, or involving smaller amounts. But, however their jurisdiction may be limited, territorially or otherwise, there may arise for determination by them, cases in which the law to be applied is not law laid down by the power to which they owe their creation.

There is hardly any line of division founded upon the nature of the subject matter in litigation, which may not be, or has not been, adopted in some one country or another; but it is not of importance here to pursue this general inquiry further. It is of importance to note that, both in the United States and in Canada, the jurisdiction of a court may be, and in many cases in the former is,

(e) What is the foreign law in such cases is, in British jurisprudence, enquired into as a matter of fact, and must be proved by the evidence of experts versed in such foreign law.

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limited to the adjudication of causes arising out of matters within the exclusive competence of one or other of the different legislative bodies existing therein. As a question of jurisdiction, therefore, in such case, it may be necessary to determine just where the line of division between the different legislatures, should be drawn. In this connection, we may note too, that it may-though not of course as a question of jurisdiction-devolve upon Canadian courts to determine like questions, as to the line of division between the federal and state legislatures in the adjoining Republic. It is, however, only in exceptional cases that the jurisdiction of a Canadian court of law will depend upon the determination of the line of division between the different Canadian legislative bodies (f). We have dwelt upon these different considerations in order to make clear that every court, by whatever authority created, or whatever its jurisdiction, territorially or otherwise may be, may be called upon to determine, and practically to administer, Imperial law, Dominion law, Provincial law, or even foreign law, in order to determine the rights of litigants.

Putting it broadly, a court of law may be said to be an organization created with a view to the determination of facts, and the exposition and enforcement of the law applicable to those facts, between parties who are at variance upon these points. In the performance of its duty, certain procedure has to be adopted, and a certain administrative staff has to be made part of this organization in order to secure the enforcement of the judgments of the court. Over these again may be established appellate courts. But whatever the details of the organization may be, and aside altogether from the question what government should create courts, or whether both Dominion and Provincial governments should have such power, it would seem expedient, to say the least, that the whole matter of the constitution of any given court should be in

(f) See post, p. 229.

the hands of one and the same government (g). If different parts of the machinery of any court are supplied to it by different authorities, it must necessarily be a very difficult matter to fix responsibility for a miscarriage of justice in any given case, unless the cause of such miscarriage can be definitely located, and be decisively assigned to some particular part of the machinery of the court.

The Imperial parliament, as the supreme power in government throughout the British Empire (h), may establish courts within the limits of any one of the colonies of Great Britain, and, as a matter of fact, we have, in Canada, Vice-Admiralty courts of Imperial creation, the jurisdiction of which is defined by Imperial statutes. What we must note is that in administering law within the sphere of their jurisdiction, these Vice-Admiralty courts are not limited to the enforcement of Imperial law, but must, should occasion arise (as it may in any court of law), expound and practically administer Canadian law (i). But, with the exception of the special class of cases which come before those courts, the administration of justice, using that term in its widest sense, in Canada, is left to courts of Canadian creation.

At the date of Confederation, there were in existence, in the different provinces, a large number of courts of law; and, for some years thereafter, the administration of justice throughout Canada was in the hands of these provincial courts, sec. 129 of the B. N. A. Act expressly providing, that all laws and all courts of civil and criminal jurisdiction, and all legal commissions, powers, and authorities, and all officers, judicial, administrative and ministerial, existing in the different provinces at the Union, should continue as if the Union had not been made. Except, therefore, as

(g) See post, p. 234 and notes to B. N. A. Act, sec. 91, s-s. 27, and sec. 92, s-s. 14, and sec. 96, et seq.

(h) See Chap. IV., ante.

(i) Redpath v. Allen, L. R. 4 P.C. 511; see ante, p. 195.