JUDICIAL MATTERS.

Press, Volume II, Issue 50, 26 April 1862, Page 1

JUDICIAL MATTERS.

We are indebted to the courtesy of the Honourable ] the Attorney-General for the opportunity of consider-J in<r certain bills, which it is the intention of the: to introduce at the next Session of the General Assembly, all more or less relating to the administration of justice in the colony. Whatever doubts may be entertained as to the advisability of giving to them the force of law, there is no doubt as to the praise due to Mr. Sewell for the industry and activity which he has displayed in considering and brining into Bhape so large a mass of materials j and these qualities appear all the more conspicuous when it is remembered that, during the whole time occupied in their elaboration, most of his colleagues were on their travels, so that the duties of their departments must have been added to those of his own office. It would hardly be possible, considering the variety and importance of the questions to "which these bills give rise, to examine them thoroughly in detail within tbe space allotted to an article. It would require a series of articles to exhaust the subject, and even a cursory review would occupy more of our space than we can spare. "We must therefore confine ourselves to one or two points which have struck us as characteristic of the whole, and which may serve to indicate the spirit in which they are conceived. In the first place it appears to us that these bills aim at a complete remodelling of the judicial machinery now in operation; and this of itself — however desirable, in the abstract, the proposed changes may be—is practically an evil. Old forms and established usages can in no case be subverted altogether with impunity—at best every fundamental change must be a hazardous and uncertain experiment; and perhaps there is no institution of civil society so liable to surfer permanent injury from incautious and wholesale innovation as the courts of law. Changes even in minute particulars must always be attended with more or less of danger because their exact efiect cannot always be very clearly perceived until the particular cases to which they apply, arise, while the evils of a false step are less easily perceptible, and therefore leas easily corrected in this than in most other matters. But in addition to this general objection to all measures of so sweeping a character, it appears to us that the bills before us embody an idea which is altogether opposed to what we have always been taught to consider as a distinctive feature in the procedure of English courts of law. There seems a tendency to rely altogether upon documentary evidence, while the benefits of oral testimony are entirely ignored. English courts of law, unlike those of other countries, not only take into account what a witness says, but also the way in which he says rt; aud in order to enable them to do so in all cases, it has been made an invariable rule that a man can only be tried in open court, face to face with his accusers and in the presence of those who are to be J"s judges. In short,the practice of all English procedure is based upon this fundamental assumption, that, in ,J ™ er to <io justice between man and man, something more j» required than a mere record of words uttered. it is the mode in which the testimony is delivered *'hich is expected to furnish a key to the value to be attached to it. The living men themselves, their a ppearance, their manner, their very looks, must be and questioned, and made to tell their own a c—and no one can have witnessed many trials being conscious that tins tale is often very different from that which comes from their mouth. here i 8 something else by which the credibility and "Worthiness of the witnesses is to be estimated lan tlie We words which they utter. We quote some "Passions used by Chief Justice Hall, which ni t upon lately, and which seem very appli-

cable to the point in question. " A jury is not pre- " cisely bound," he says, " to have two witnesses to " prove every fact, nor to reject one witness because he " is single, or always to believe two witnesses, if the " probability of the fact does upon other ciroum- " stances reasonably encounter them; for the trial " is not here simply by witnesses but by jury ; " nay, it may fall out that a jury upon their own " knowledge, may know a thing to be false that a '' witness swore to be true, or may know a witness to " be incompetent and incredible though nothing may be \ " objected against him —and may give their verdict " accordingly." We need hardly remark that the rule here laid down for a jury applies equally to cases where the functions of a jury are performed by one person only. The principle is the same in both cases that a court of justice may with propriety be influenced in its decision by matters which do not actually appear in evidence. Written evidence alone can never he made fairly and fully to reproduce the various incidents of a trial, and it accordingly often happens that the most faithful report of a trial produces a totally different impression upon those who only read it and those personally present at it. Row the whole value and importance of this idea, so carefully recognized in England, appears to have been altogether overlooked in the bill which is designed to regulate appeals from an inferior to a superior court. In it the decision as to the merits of every case is made to rest exclusively on documentary evidence. No regard is paid to that part of the evidence which from its very nature is incapable of being reduced to writing, and thus the inferior courts are deprived of that independence and right of exercising their own judgment which is so indispensable in order to enable them to render substantial justice. We do not undertake to discuss the question as to the relative value of real and written evidence. All we wish to point out is the general fact that it is unsafe to make the mere words uttered by a witness the sole test by which his testimony is to be judged, and that any alteration of the law which assumes this principle as its basis is pro tauto an alteration in the wrong direction. This appears to us to be the one great defect in the proposed measures, that in attempting to bring every proceeding to the tangible teat of written evidence, they disregard those more indirect tests which are at present recognised. In condemning, however, some of the principles upon which the Government has taken its stand, we are bound to do them the justice of admitting that their administrative acts seem to agree well with I their theory. The manner in which they dealt with a case which occurred at Wellington a short time ago bears so directly upon the present question that we cannot refrain from alluding to it. The outlines of this case, known as that of Newry v. Atcheson, were shortly as follows : —Atcheson, the defendant, having been convicted of an assault in the Resident Magistrate's Court, was sentenced to pay a fine, but happening as it appeared to be in favour with the Provincial Executive, the Superintendent interested himself in his favour, and having succeeded, by some means or other (never very satisfactorily explained), in possessing himself of the depositions, he declared the fine remitted, alleging as his reason that having read the depositions he had arrived at a different conclusion as to the merits of the case from that arrived at by the Court before which it had been tried. We felt no surprise at the course pursued by Dr. Featherston in this matter, and hardly any on hearing that his proceedings had been sanctioned by the General Government. Violations of every sound political principle, whether arising from ignorance or party feeling, are such common occurrences at Wellington, or wherever Wellington politicians happen to be in the ascendant, as to make it unlikely that such a case as this would attract much public attention.

So far as we were concerned we simply attributed the action of the Government to the necessities of party. We find, however, that we did the Government an injustice, as it now appears to be deliberately assumed as an axiom in the administration of justice that a person at a distance, shut up in his Btudy, has equal facilities for deciding a dispute with one who has had all connected with the case personally beforo him.