the principles laid down for the United States by Chief Justice Marshall. Every one would gladly accept the guidance of that great judge in a parallel case. But he was dealing with the constitution of the United States. . . . It is quite impossible to argue from the one case to the other. Their Lordships have to construe the express words of an Act of Parliament which makes an elaborate distribution of the whole field of legislative authority between two legislative bodies, and at the same time provides for the federated provinces a carefully balanced constitution, under which no one of the parts can pass laws for itself, except under the control of the whole, acting through the Governor-General. And the question they have to answer is whether the one body or the other has power to make a given law." 85 And the Supreme Court of Canada has also evinced a clear intention not to permit the decisions of American courts to have too great weight in the Dominion. This intention is shown in the reversal of the provincial decisions establishing the rule of implied prohibitions for the purposes of taxation,86 and also in the evident desire in recent years to avoid citations to court decisions in the United States. It is no doubt the desire of justices both Imperial and Dominion to build up a constitutional system based on principles which are more closely modelled after modern English law than that of the United States. Moreover, judicial review in practice is a very different thing in Canada from what it is in the United States. There is no encouragement or incentive to place confines on the legislative realm, for Canadians have not accepted the dictum which has had such a vogue in the United States, that it is the chief object of a constitution to confine and restrain the legislative power. 87 The courts in Canada are disposed to grant a free rein to legislative vagaries as long as each branch keeps within the limits carefully defined by the Constitution. Justices as well as political leaders have been prone to uphold the theory that each legislature is supreme within its special domain. So far as it is possible to judge by the number and importance of acts invalidated, judicial control has decreased as the constitutional relations have become more carefully defined. This decline in constitutional cases has been so marked that there 85 12 App. Cas. 575, 587 (1887). 86 Abbott v. City of St. John, 40 Sup. Ct. Rep. 597 (1908). is only a slight interest in constitutional law among Canadian lawyers and judges.88 This decline is in marked contrast with the development which has given the courts more and more power in the United States and has made constitutional law one of the greatest of our branches of jurisprudence. One fact which has no doubt aided greatly in clarifying and solidifying the relations between the Dominion and the provinces of Canada, and which accounts in large part for the decline in judicial decisions delimiting legislative power, is the regulative function of the Privy Council. This body is entirely removed from the turmoil of Dominion politics and, from a vantage ground of lofty independence and superiority, it has firmly and effectively laid down the principles which have become the chief tenets of Canadian public law. The difficulty of a coördinate branch of government venturing to assert its authority over another department, which has on various occasions caused bitter feeling in the United States, has thus been averted by referring doubtful questions involving points of delicate political adjustment to this separate and independent judicial tribunal. It is a marked tribute to the wisdom and justice of the decisions of the Council that its decrees have been almost invariably accepted and approved by the public opinion of Canada. Canadian courts apply no broad guarantees of individual rights. They rarely find it necessary to invalidate acts, and there is always a disposition to permit the legislative act to stand if any justification for jurisdiction over the subject matter appears. Moreover the final court of appeal is the Judicial Committee, which in theory at least is a branch of the legislative department of the English government. The verdicts of this court are subject to the general authority of the Imperial Parliament in its legislative capacity. But Parliament very rarely modifies or reverses its verdicts, so that in fact practically all cases of judicial construction of legislative acts are determined by courts in the regular process of judicial decision. The possibility, however, that the decisions of the Judicial Committee may be reversed in Parliament, that this body has a semi-legislative status and the fact that the legislative acts of federal and provincial parliaments are rather infrequently sub 88 "Constitutional questions are, in comparison with their frequency in the United States, rarely raised in ordinary litigation." Quoted 46 CAN. L. J. 358. ject to invalidation as ultra vires, add color to the dictum which Canadians are prone to emphasize to the effect that their legislatures are supreme. The combined effect of all limitations and restrictions placed about the exercise of this authority renders judicial review in Canada a relatively simple matter of construction. And as the Judicial Committee and high court have developed the principles of interpretation for the Canadian Constitution, cases for the reversal of the legislative will have declined both in the federal and state governments. Cases raising vital issues of construction have arisen quite infrequently in recent years, and if one may venture a prophecy seem likely to grow less and less as time goes on. With the specific powers of both governments carefully outlined in the fundamental law, all powers distributed between the two governments, and with no incentive to the judiciary to exercise a censorship over legislative acts on vague general principles which rest for application with the judicial conscience, it cannot be claimed that judicial review in Canada has anything like the potency that it has in the United States. On the other hand, the disposition to deny the influence of judicial decisions and the customs prevailing in the federal system of the United States is scarcely in accord with the facts, and evinces something of a spirit of prejudice which may be natural on the part of the public men in a nation with whom our relations in the past have been none too friendly. Indeed the statesmen who framed the British North America Act, who sought to avoid the defects which time and events had shown to exist in the Constitution of the United States 89 and who aimed to preserve their allegiance and loyalty to their motherland, adopted a form of government which has been declared to be "a happy compound of the best features of the British and American constitutions." 90 Among the features of this compound, in which the influence of the United States is particularly evident, is the practice of judicial review of legislation, now a well recognized and highly approved feature of the Canadian Federation. Charles G. Haines. UNIVERSITY OF TEXAS. 89 See opinion of Sir John Macdonald, quoted in In re Prohibitory Liquor Laws, 24 Sup. Ct. Rep. 170, 206 (1894). 90 From opinion of George Brown, quoted in In re Prohibitory Liquor Laws, 24 Sup. Ct. Rep. 170, 207 (1894). COMITY IN THE FEDERAL COURTS COMITY 'OMITY is a term of international law. Its best definition, in the light of the derivation of the word, is "courtesy." Dicey, indeed, looking at what the courts do when they profess to be actuated by comity, rather than at what they say, has defined it as caprice; and it is perhaps true that no more definite principle than caprice can be said, on the whole, to govern the attitude of the courts of one nation towards those of another. What they say, however, as to their attitude, is always couched in terms of the greatest courtesy. Story says that it has been thought by some. jurists that the obligation of nations to give effect to foreign laws when not prejudicial to their own interests is not so much a matter of comity or courtesy as of paramount moral duty. But this is a counsel of perfection. The attitude of the English courts towards the decisions of American courts may be taken as typical of the working of the principle of comity. In a case like Castro v. Regina 2 we see it given considerable effect. There Lord Watson refers to an American case, "not of course as an authority, because I take it that a judgment of a court in New York is not an authority in a case arising in England, with regard to English rules of procedure, but as a decision of learned judges that ought to influence the House to come to the same conclusion in the present case." "Ought to influence" puts it about as strongly as international comity can be put. The attitude of American courts towards the decisions of English courts is theoretically precisely that expressed by Lord Watson, but practically the psychological standpoint is slightly different. Here there would be the respect for learned judges, of which Lord Watson speaks, with an added element of respect for judges sitting at the very fountainhead of our system of law. It is comity in each case, and comity is only courtesy; but the courtesy of the parent towards the child is not just the same thing, psychologically, as the courtesy of the child towards the parent. That 26 App. Cas. 229, 249 (1881). 1 CONFLICT OF LAWS, § 33. there are these psychological elements in comity is a consideration not to be overlooked in a study of its workings as a judicial principle. In American law the word "comity," in addition to its normal use, has been borrowed to express relationships not international. The logical anomalies of a federal union have brought this about. The qualified kind of sovereignty prevailing under a federal government has led to a qualified conception of comity. Our sovereign states, in so far as they are sovereign, possess to that extent sovereign judicial powers. The relation between independent state tribunals, acknowledging no appellate superior within the sphere of their domestic concerns, came naturally enough to be expressed by the word "comity." But it is not quite the comity of international law. It is a comity exercised under the dominance of the "full faith and credit" clause of the Constitution, and under limitations which preclude the final determination of questions of federal constitutional and statute law. The terms in which this kind of comity is expressed in judicial discussion of the subject in our state courts are the same as those used to define comity in international law; but the underlying difference in situation should not be lost sight of. Furthermore, just as the states have their own field of sovereignty, and their own courts with jurisdiction in that field, so has the federal government a field of sovereignty, and a system of federal courts exercising jurisdiction in that field. These federal courts, aside from the Supreme Court with national jurisdiction, have a local jurisdiction, geographically limited. Each District Court, like the old Circuit Court, now merged in the District Court, has jurisdiction only within its own district, which covers either a whole state or some definite part of a state. Each Circuit Court of Appeals, of which there are nine for the country, has jurisdiction over the groups of states which Congress has assigned as its circuit. Each District Court is independent of every other District Court, each Circuit Court of Appeals of every other Circuit Court of Appeals. Congress has not defined their attitude towards each other. What should that attitude be? It has been left to them to settle it for themselves, and they have said that it should be one of comity. But if comity, it is comity of a new kind,—it is not the comity of international law. It is comity between courts of the same sovereignty, administering the law of that sovereignty. This was not the situation under which the doctrines of comity took shape; |