An exception is defensive material alleged to delay or to destroy an action. One dilatory exception is that to the exception of the judge. Under our Constitution, in Canada, all Judges hold office by delegation from the King or Queen. It is true that these delegations continue even upon the demise of the sovereign, but it is equally true that the delegation, as expressed in a commission, is an essential ingredient to jurisdiction.

It is a common sense enough that that an individual who purports to be a Judge must have some sort of grant to exercise the office. Here are three authorities demonstrating this proposition:

The first comes from the Mirror of Justices:

A defendant can aid himself by other dilatory exceptions against the power of the judge in this manner:–‘Sir, I demand sight and hearing of the commission by which you claim jurisdiction over me.’ And if the judge refuses or cannot show the commission, no one need acknowledge him as a judge delegate. (7 Selden Society 93)

A second instance comes from the ancient authority Fleta:

Rightful judgments ought to endure and stand firm and be inviolably observed until adequate satisfaction is obtained and so first of all it must be seen whether the justice who has to make judgement is competent. If he is a delegate and has no warrant from the king, what is done before him will be of no consequence as if it were done before one who is not his proper judge, although such as are summoned ought to come. Yet they should not be obeyed, not only when they have no warrant but also even if they show a warrant which has not proceeded from the king. (99 Selden Society 177)

A third instance comes from Bracton’s De Legibus et Consuetudinibus Angliae:

It is clear that first of all, in order that judgments be valid, it is necessary to see whether the justice has a warrant from the king so that he may judge, for if he has no warrant what will be done before him will have no validity, done, so to speak, before one not his proper judge. The original writ ought first to be read and then the writ constituting him a justice; if he has no such writ at all, or if he has but it is not at hand, he need not be obeyed, unless the original writ makes mention of his judicial authority.(Bracton, v. 4 p. 278)