The Dominion. MONDAY, JULY 11, 1910. "TRUST THE PEOPLE."

Dominion, Volume 3, Issue 865, 11 July 1910, Page 6

The Dominion. MONDAY, JULY 11, 1910. "TRUST THE PEOPLE."

As the result of some years' agitation, the Government has at last introduced into Parliament a new Crown Suits Bill. Tho agitation commenced as fcho result of two actions that were brought against tho Crown by tho New Zealand Farmers' Distributing Company, Limited, and Motorman Barton, on tho hearing of which it was made clear that tho Crown is, under the existing Crown Suits Act, in a much more favourable position as a defendant litigant than any subject, whether a private individual or a company or any other corporation. No one has attempted to dispute that that position is most unfair, and that the Crown should not enjoy any immunity from liability for a legitimate cause of action that is not also enjoyed by the subject. This view, which at any time would have had the support of common sense and natural justice, has been emphasised

by the development that has taken plane since 1&81, when the existing Urown Suits Act was pasted, in what may be called the commercial Departments of the (State. Why, it has been asked, should not tne Crown be liajle for a wrong done to an individual, say, by. tho State C'lill Department, in the same way and to the same extent as, say, the Vvestport Coal Company, Limited (a competitor of the Department), Would bo liable for the same wrong!

The Government, after permitting ah injustice to continue for years, lias at', !iit:t, under pressure of public opinion, been iorced to see tix , justice .of this view, and has,'though tardily, now introduced a measure which" will to some extent remedy what tho public has regarded as an exceedingly wrong and unjust state of affairs. We are not at all certain, howsver, that the _ Bill goes far enough because, while it makes the Crown liable in damages in certain cases whore iindi-.r the present statum aci causa of action would lie, there doas not appear to be any provision which enables the subject U) obtain an injunction to prevent the Crown from continuing a wrongful act. Ii this is to, the principal grievance, of which tlin New Zealand l r ;imiens' Distributing Company, Limited, justly complains, would remain unremedied under the present Bill, because even successive actions for damages may be quite an insufficientremedy if the wrongful complained of is allowed to continue. But there is a much more eovious ground of complaint against the present Bill, a. ground of complaint that affects every subject "f the Crown in the Dominion. In" tho present state of the law, any eiwject who has a. cause of action as-air.sfc the Crown under tha existing Crown Suits Act is entitled,- in Ihu same way as if his claim were made against another subject, to have his action tried by a jury; cf his fellow men. While the Bill just introduced makes the Crown li.->.b!c to the subject for damages in certain cases where it is not at present liable, it takes away from_ the subject in all cases, as against the Crown, the right to trial by jury. The clause containing this provision reads as follows: —

No claim or demand against F.is Majesty under this Act shall bn tried before a jury.

A more undemocratic or illiberal enactment emanating from even the present Government would be hard to find. That is how the Ward Administnitiun shows its trust in _ the people. The right to trial by jury is, and always l.as been, one of tiic most cherished rights that the Britisher possesses. In nearly every action brought at common law there is a sharp conflict of evidence; ami, if the plaintiff or claimant si n> weds, the question of assessment of damages arises. In such cases it is, and has been in British dominions, the province of the jury, subject to the direction of the judge on all questions of law, including the burden of proof, to ascertain where tho truth lies and to assess the damages if they find in favour of the plaintiff. ' Who has not heard learned judges, liolh in l.'ingkiid hirl hi New Zealand and in other parts of the Empire, say over and over again that they were very glad to have the assistance of the jury in both those dirdctiuiia'i Who has not heard judges say repeatedly, in actions which have been tried before a judge alone, that they would have been glad to havo the services of a jury to assist them in the determination of these two questions? And yet what I does tho Government propose to do'! To take away from a claimant _ m tactions against the Crown the right 'to have both these important questions decided by a jury and to hand over the absojute power of decision to a single judge. We have the greatest respect for tho judges on the New Zealand -Supreme Court Bench, but judges arc but human, and arc liable to err. The proposal of the Government is a retrograde step, and one that comes very badly from a Government which professes to be Liberal. This is a question that affects every member of the public, bocause under our existing and_ probnblo future conditions it is impossible for any person to say when he will not be involved in litigation with tho Crown. Why should the Crown be in any different position, when defendant in an action, from any private person or company? Our readers may well imagine what would happen if any private member of Parliament were to propose lO take away from a subject of the Crown, in an action against a private company, the right to trial by jury. No words of execration that Wo'can think of would be strong enough to describe the language that would be hurled at the unfortunate private member by Ministers and their satellites. And yet, if a person is entitled to trial by jury in a criminal case, if he is entitled to trial by jury in a civil action against another person or against a company, why should he not be entitled to the same right in an action against the Crown? At present he has that right-a right which a socalled Liberal Government is attempting to take away. And what is the reason underlying the Government's extraordinary and undemocratic proposal? Is it'that the Government fears (and this seems to lie tlic case from the utterances of iJio Prime Minister) that tho Crown will not receive fair treatment at the hnnds of juries? Surely such a suggestion _is an insult to every citizen in this Dominion who is qualified by law to sit as a juror, and a wholesale reflection upon their honour and their integrity. It implies a suggestion that citizens acting as jurors would be prepared to violate their oaths to do justice in cases where tho Crown is concerned. Juries admittedly sometimes make mistakes, lr.it osperienco tells us that they rarely fail to do substantial justice. In any cast-, what difference is there_ between the Crown as defendant in an action and a larg* , shipping company or insurance or industrial company, or tho proprietor of any other large concern in the like- position? If a claim against tho Crown is not to bo tried by a jury, why not a claim against any such company or [proprietors? Yet Ministers know i that even the Government dare not go to such a length. Or is the rcaS nn underlying the proposal to be looked for in another direction? The Government has recently expressed the intention of having its legal work done as far as possible by the Crown Law Office. \\r. freely admit the ability of tho Solicitoi'-General and the newly-appointed Law Officers as lawyers, but it is well known that their experience in the conduct of defences before juries is of the most limited extent. Is that the secret of this remarkable proposal ? Whichever of theso two reasons is the one that has actuated the Government—and we can conceive of no other —or v/hcthoi it bo a combiun.-

tion of the two, or whether it be some other reason that teems at present iin.athoa.ablc, we venture to think that the public will not be satisfied and will demand amendment of the law so that full justice snail be dune.