Page:The Green Bag (1889–1914), Volume 07.pdf/91

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The Green Bag.

in Council, or by special direction of Her Majesty under her sign manual, be heard by not less than three members of the Judi cial Committee. 14 and 15 Victoria pro vides that no appeal shall be heard unless three members of the Judicial Committee, exclusive of the Lord President of the Coun cil, are present: Under 7 and 8 Vict. c. 69 Her Majesty may, by general order in Council published in the " London Gazette," within one calendar month from the making of it,, or by special order in Council, provide for the admission of an appeal, although there is no court of error or appeal in the colony from which it is brought. By 34 and 35 Vict. c. 91 Her Majesty was empowered to appoint within twelve months after the passing of the act, by warrant under her sign manual, four additional judges, each being or having been a judge of one of the supe rior courts at Westminster, or a chief justice of Bengal, Madras, or Bombay, to act as members of the Judicial Committee. Fin ally, under the appellate jurisdiction acts, 1876 and 1887, provision was made for the ultimate substitution of two additional lords ordinary of appeal for the four paid judges appointed under the Judicial Committee Act, 1 87 1 (34 and 35 Vict. c. 91), and thus for the ultimate fusion of the Judicial Committee and the House of Lords. Having thus sketched the history of the Privy Council as a court of law, and the statutory development of the Judicial Com mittee, we are now in a position to consider its jurisdiction more minutely. The cases which the Privy Council decides are prac tically divisible into four classes: I. Peti tions for the prolongation of letters patent for inventions; II. Appeals from the eccle siastical courts; III. Colonial and Indian appeals; and IV. References by the Crown on the advice of a responsible minister. We may deal shortly with these in turn : — I. Prior to 1835 the term of letters patent (fourteen years) could not be extended except by special act of Parliament. The

frequency, however, with which application was made to the Legislature for statutory assistance, suggested the propriety of fram ing some general measure providing for the extension of letters patent; and accordingly Lord Brougham's act (5 and 6 Will. IV., c. 83, s. 3) enabled the Judicial Committee, after due inquiry, to report to Her Majesty in favor of a prolongation not exceeding seven years. A later statute (6 and 7 Vict., c. 69, s. 2), empowered the Judicial Com mittee to advise an extension for a period not exceeding fourteen years, where it was shown that the patentee had been unable to obtain a due remuneration for the expense and labor in perfecting his invention during the original term, and that a grant of seven years would not suffice for his reimburse ment. II. The Privy Council is the ultimate Court of Appeal from the ecclesiastical courts, such as the Archdeacon's Court and the Court of Arches. As we shall describe the ecclesiastical courts in a separate paper, any further notice of them may be waived for the present. III. By far the most important of the functions of the Privy Council is its juris diction in colonial and Indian appeals. This jurisdiction is practically of a twofold character. The letters patent, royal instruc tions, local or imperial acts, and orders in Council, under which courts of law are es tablished in the British possessions and de pendencies abroad, frequently grant to liti gants a right of appeal to the Privy Council in certain cases and under certain specified conditions. Thus it is sometimes provided that an appeal may be taken from any judg ment affecting a sum in excess of a claim to property or civil right amounting to .£500 in value, if leave to appeal is asked within fourteen days from the date of the judg ment appealed against, and security, fixed by the court below, is found within three months of the petition for leave to appeal. Apart altogether, however, from any en