THE EDWARDS CASE.

Press, Volume XLVIII, Issue 7868, 20 May 1891, Page 3

THE EDWARDS CASE.

COUNSEL FOR THE DEFENCE,

9 (PUBS ASSOCIATION mJCQBAV.] WELLINGTON, May la

Mr Harper, for the defence, argued that the appointment of Mr Edwards was legal and constitutional. " Ho quoted from the correspondence between Mr Edwards and the Government of the day, showing that the former was not in favor of accepting the position as a Commissioner alone, out made it a condition precedent that he should be also appointed a Judge of the Supremo Court, and if he took the latter alone it showed clearly that he was not to be appointed a temporary or provisional Judge, but a Judge -of the Supremo Court. The commission had been offered to him as Judge of the Supreme Court, and had been accepted as such, and everything was done by him to have his salary ascertained and established. Mr Harper quoted nmnorous authorities dealing with the English Judges, showing that it was not until the reign of William IV. that the Judges were placed on the Civil list, and until that time they had been dependent on the Crown for their salaries. He combated the argument of plaintiff's counsel that the ascertainment and establishment of a Judge's salary was necessary before his appointment, and contended that in appointments of Justices Johnston, Richmond and Chapman to the Bench the Civil List Act mentioned a lump sum for Judges, and the ascertainment was made of salaries to bo paid to individual Judges. Mr Harpor said that tho defence to Sir Robert Stout's main point on which they relied, was that from 1844 to 1882 there had been no attempt by means of legislation to limit the power of the appointment of judges. This he sought to establish by carefully reviewing all the Acts on the subject. Tho commission having been issued by the Governor he could not see how it could be cancelled unless there were express limitation by statute of the number of Judges. The only ground on which the commission could possibly be cancelled (in the absence of any allegation of misconduct) was that the Crown had granted tliat which by law it had no right to grant. In conclusion Mr Harper put it that the case was oue of the greatest magnitude, and that the Court should give the very greatest consideration to the matter before it would say that it would import into a statute what might have been a very doubtful convention or law of constitution, a great principle which had never been accepted in any way other than by the statutes to which it could be meant to apply and which had been never left to inference. As to Sir Robert Stout's reference to the dignity of the Bench, he maintained that the dignity of the Bench had been upheld as far as possible by the constitutional appointment of Mr Justice Edwards, an appointment which was perfectly proper in all ita surrounding. Nothing was eaid against Mr Edwards and it dia not lie in Sir Robert's mouth to Bay that he had brought about any question of the dignity ofthe Bench, or its position. Mr Chapman dealt first with Sir Robert Stout's argument that* the commission of a Judge was auxiliary to that of a CommJs* sioner, and fell with it. The correspondence showed that Mr Edwards refused to accept the Commissionership on those tonne, but he submitted that the Court could not read it to Commission. Part of the corree* pondence between Mr Edwardeand Premier showed that letters patent of the Crown could not be controlled by a letter from the Crown itself. The constitutional principle invoked by Sir Robert Stout as to the fixing of the Judges' salaries before appointment derived ita whole force from English statutes which were not' in operation in New Zealand, so that all the provisions bearing upon the question were embodied in our own statute law. He argued that between the years 1862 and 1873, when the amount for judicial salaries was stated in a lump sum, no Judge could say that hie salary was ascertained by an Act of Parliament, but he would have to refer to his contract with the Government for tho information. This showed that the Constituk tional precedents of England were not ap* plied to the colony, and that the appointment of Mr Edwards stood on exactly the same footing as those of some of his brother Judges. Mr Theo. Cooper contended th&y in this case the Court had only New Zealand statutes to deal with, and the question vm» purely one of construction. They must put? aside the arguments as to the constitutional principle, and go back to the plain words of the statute. Coming then to the statuteshe found the reservation to the Crown oi the right of appointment without any limitation as to number. Section five of the Supreme Court Act, 1882, provided that the Court should consist of one Chief Justice and such other Judges aa his Excellency should from time to time appoint. Mr Cooper claimed that union* the terms of the Act were strained Mr Edwards' appointment could not be declared invalid.

At 3 p.m. the Court adj6urned until the following day. Some amusement was caused during the proceedings by a point which was raisod by Mr Harper, that though tho salaries of judges were sought to be protected from Parliament, it was doubtful whether they really were so, and whether in certain con* tingencies, such as stonewall or other obstruction the judges might not have to sue Government for their salaries. The Chief Justice, amid some suppressed laughter, said, " You must not frighten us too much, Mr Harper." Arguments in tho case will probably Iβ finished about noon to-morrow.