brought it within the decisions, which laid down the conditions which must appear, before the Committee would grant leave to appeal as a matter of judicial discretion. Later on the following discussion took place, according to the notes: "Mr. Clauson (for the respondent): Assuming I am right in saying there is an appeal as of right, then it is only a small point as to what the learned Judge actually did. He obviously contemplated an appeal, because he says we are to give security. I submit your Lordships would leave it to the Court in Quebec to determine the formal method of doing the thing, and I gather this is the method that is commonly adopted in Quebec, and it is understood to be the sending forward of the appeal, which will be followed by the Record coming over in the ordinary way. The Lord Chancellor: The Order ought to be more specific. Obviously the learned Judge intended to give leave. Lord Carson: The giving of leave to appeal when you have an absolute right to appeal must be a formal matter with a view to carrying out certain conditions or rules which make it necessary to appeal, because we must see that all those conditions are carried out. Mr. Clauson: The giving of leave is simply for the purpose of working out conditions as to security and so on. Your Lordships see there is a reference to section 68. The learned Judge says: In view of section 68, you have a right to appeal. Lord Blanesburgh: What Mr. Lawrence says in answer to that is: It is a difficult question of construction that ought to be determined by the whole Court and not by a Judge in Chambers. Mr. Clauson: Surely that is a matter for the Quebec Court, and I submit your Lordships would hesitate to say that the practice which has been common for many years is a wrong practice; but, of course, if your Lordships thought it proper to say that, it would be duly regarded. However, I should submit that your Lordships would hesitate to do that. I submit to your Lordships that this is quite an ordinary case, and that I plainly have the right to appeal. The Lord Chancellor: It seems very reasonable that this should be dealt with in Chambers, if all they have to say is that the formalities have been complied with. Mr. Clauson: I submit the matter is perfectly regular, and obviously I have a right to appeal. I have presented this petition for special leave to appeal. I do not know whether your Lordships wish me to deal with that. It is a matter of great importance to the parties, and, if there was a technical flaw, if I might so express it, in 43-C.B.R.-VOL. III. section 68, and if your Lordships felt bound to say that sub-section (2) of that section was confined to matters directly dealing with land. I venture to submit, necessarily so, that in a case of this importance to the parties, it is a case in which His Majesty should grant special leave to appeal. The Lord Chancellor: It is much more than a technical flaw; it is a substantial lacuna. Mr. Clauson: Yes, which His Majesty would fill up in the exercise of his prerogative." At the conclusion of the argument the following appears: "The Lord Chancellor: Without expressing any opinion as to the validity of the leave given, their Lordships will advise His Majesty to grant special leave to appeal." One other matter still remains for consideration. It may be contended that although the Constitutional Act empowers the provincial legislature to limit the right of appeal to His Majesty, if the legislature did not expressly say that the judgment was final and that no appeal should lie to His Majesty except as set out in the provincial Act, that the Royal Prerogative still subsisted on the ground that the legislature had not undertaken to exercise its powers. In other words, that in such case there might be an appeal by virtue of the provincial Act and also by the virtue of the Royal Prerogative, and there is language to that effect in the decision of Cushing v. Dupuy.2 The Statute passed in Lower Canada, 34 Geo. III., chapter 6, was the provincial legislation which carried into effect the power of controlling appeals given to the province by the Constitutional Act. Section 23 constituted the Governor in Council a Provincial Court of Appeal, and section 30 provided that the judgment of the Court of Appeal should be final in all cases not exceeding £500 sterling. In 1840 the legislature codified the procedure of the Courts of Lower Canada by the Statute 3 and 4 Victoria, c. 35, and the provision making the judgment of the Court of Appeal final was dropped. Only that portion which gave a right of appeal to the Privy Council was retained. In the Province of Ontario, however, R.S.O. 1914, c. 54, s. 2, the provision for appeals to the Privy Council concludes by saying, except as aforesaid no appeal shall lie to His Majesty in His Privy Council." If the absence of a similar provision in Quebec gives any colour to the contention that the prerogative right to grant leave to appeal has been revived in that province, it would be well to amend the Act and place the matter beyond peradventure. Ottawa. 25 App. Cas. 409. E. R. CAMERON. THE CANADIAN BAR REVIEW THE CANADIAN BAR REVIEW is the organ of the Canadian Bar Association, and it is felt that its pages should be open to free and fair discussion of all matters of interest to the legal profession in Canada. The Editor, however, wishes it to be understood that opinions expressed in signed articles are those of the individual writers only, and that the REVIEW does not assume any responsibility for them. It is hoped that members of the profession will favour the Editor from time to time with notes of important cases determined by the Courts in which they practise. Contributors' manuscripts must be typed before being sent to the Editor at the Exchequer Court Building, Ottawa. EDITORIAL. GREETINGS AND ACKNOWLEDGMENTS.-With its present number the CANADIAN BAR REVIEW completes the first three years of its existence. One of our old poets has said that "the third of all things is very critical;" and, now that the REVIEW has escaped that anxious period with its life, the Editor feels that the Christmas greetings he begs to tender to his readers should be accompanied with cordial thanks to all and sundry of his contributors-who are chiefly responsible for whatever measure of success the publication has been permitted to achieve. 66 Three years is truly no long span in human affairs, but then the infant mortality rate is prodigiously high in the world of periodical prints! Many come to birth only to come to disaster: and their little hour of existence is in no wise one crowded hour of glorious life." Their experience makes rather a good case for the pessimistic Irishman's view that "life is a poor way of living, anyhow!" But, on the other hand, when we have a literary craft sailing for the period of three years through the testing seas of criticism and maintaining an even keel, it is a pleasant augury of longevity and a fuller measure of usefulness in its chosen sphere. At least we like to think so. If the Editor be permitted a more intimate word than usual here, he would like to say that in his attempt to give the Canadian Bar Association an organ departing in certain respects from the traditional lines of professional journalism, he is solely animated by a desire to conform to the spirit of change that has grown out of the War. In many things 1913 is as remote from us as 1813. A new birth of la joie de vivre is upon us, more far reaching in its influences than those of the Renaissance which dominated civilization in the fifteenth and sixteenth centuries; and while such influences persist men will not be content without an admixture of the sprightly with the dull in all their activities. And that will be a better philosophy of life than has been ours since the modern worship of material things has wasted the souls of men. The study of law is no sprightly business, and it is only a dull dog that would deny the averment. Baron Parke is one of the few we recall who preferred to take their law 'neat' in the evening. He is not living now. To furnish a variety of matter, then, is the purpose that the Editor of the REVIEW would serve, and not any personal ambition to acquire some little fragment of fame by a new gesture in Canadian legal literature. Fame indeed is no beguilement to an editor who would be thoroughly on his job. He must recognize in a very poignant way that he is of that "mortal soil" which Milton says does not grow the plant of fame. When he does that he will know his place, which is to make straight the path of immortality for those who contribute to his pages. Beyond that nothing matters to him. The Editor cannot close his present observations without a grateful acknowledgment of the judicious and practical assistance he has received from the Editorial Advisory Board throughout his tenure of office. While he has been so fortunate as to obtain their concurrence in most of his suggestions for shaping the policy of the REVIEW, they have not hesitated to differ with him upon occasion, and when so differing to overrule him. Thus has he been chastened for his behoof. And so he can say with all sincerity that next to our contributors it is to the members of the Board that credit is due for the quality and character of the REVIEW as it stands to-day. - In Rex v. Kopsch CRIME TRAMMELLED BY VICTORIANISM. (the Ken Wood Murder Case), the Court of Criminal Appeal in England refused an application for leave to appeal against the conviction of Alfred Arthur Kopsch by the Central Criminal Court for the murder of his aunt by marriage, Beryl Thornton, at Ken Wood, in September last. There had been illicit intercourse between the prisoner, who was only eighteen years old, and the murdered woman, and she thought she was going to have a child by him. It was claimed on behalf of the prisoner that he strangled her in Ken Wood at her own request. Counsel for the prisoner complained that the Judge at the trial failed to direct the jury that a person charged with a criminal offence was irresponsible for his act if he committed it under an impulse which he could not resist by reason of disease of the mind. He invited the Court to extend the rules laid down in M'Naughton's case1 to meet the advance in modern public opinion. The Lord Chief Justice, in giving the judgment of the Court, said "It had been suggested to medical witnesses at the trial that Mrs. Thornton had asked Kopsch to strangle her, and that he thereupon. lost his conscious mind and his sub-conscious mind took control. The jury came to the conclusion, as they could not fail to do, that Kopsch was guilty of wilful murder. The Judge fully and clearly explained the law to the jury, but it was said that he misdirected the jury by not. instructing them that a person charged with a criminal offence was irresponsible for his act if he had committed it under an impulse which by reason of mental disease he was deprived of any power to resist. In other words, the complaint was that the Judge did not tell the jury that something was the law which was not the law. The theory advanced was the fantastic theory of uncontrollable impulse, which, if it became part of the criminal law, would be merely subversive. It is not yet part of the criminal law, and it was to be hoped that the time was far distant when by any means it would be made so. It was surprising to hear counsel for the appellant say that his Majesty's Judges were continually summing-up to juries on the question of insanity in the way for which he had contended. The Court knew nothing of such summings-up. If they took place they were contrary to the law. The defence of insanity in the present case, as in so many other cases, was merely nonsense." THE TRUCE OF EUROPE.-We have spoken freely of the Pact of Locarno in the last two numbers of the REVIEW, nor can we fail to observe upon it again seeing that on the first of this month both the Pact and its supplementary treaties were formally signed in London by the representatives of the nations who are parties thereto. A milestone has thus been set in the march of humanity towards that "far-off divine event to which the whole creation moves." During the last four centuries Europe has witnessed many ceremonious attempts by her sovereign States to banish the evil genius of War, but never before has the consummation of Peace been effected by such lofty ethical endeavour and sincerity of purpose by all concerned as now. For instance, how marked the difference betweeen the Pact of Locarno and the league formed after the fall of Napoleon in 1815 by the sovereigns of Russia, Austria and Prussia, known as the "Holy Alliance." It 14 St. Tr. (N.S.), 847, 10 Cl. & F. 200. |