HOBART TOWN.

Daily Southern Cross, Volume XIV, Issue 1018, 31 March 1857, Page 4

HOBART TOWN.

A very curious point has been raised in the sister colony, of which the following account of Supreme Court proceedings will convey some idea. It will be *een that the law courts of the colony have narrowly escaped being brought to a "dead lock." Reg. v. Gorman. His Honor took his seat at twelve o'clock for the purpose of giving the decision on this case, the prisoner having been convicted of manslaughter, and remanded at the last sessions on the motion in arrest of judgment of Mr. Knight, his counsel. The Attorney- General appeared for the Crown. Mr. Knight for tUe prisoner. Mr. Knight referred to the argument on a former day in arrest of judgment, that inasmuch as Mr. Justice Home had accepted an office of place and profit, the jurisdiction of the Snpreme Court was in abeyance. Without anticipating what His Honoi's judgment might be, the learned counsel -proposed to make a few observations in reference to an Act of Council which had been passed since the Court last sat. He would first advert to the independent manner in which Judges at home treated Acts of Parliament, and «ited a case decided by the judicial Committee of the Privy Council somewhat bearing on the question involved here. Mr. Knight then read the Act of Council lately passed here lebpeeHng the President of the Legislative Council. He submitted that the Legislature had no power to pass that Act and cited the Huskisson Act in proof. By that Act the judges were to be appointed by the Crown, and he submitted further that by the law of England die judges were to be appointed by the Queen ; that was the spirit of the law. The Australian Colonies' Act. 13 and 14 Viet. c. 59, sec. 14 gave certain - powers to the present Legislature, but with a proviso that n,o law made by that Legislature should be repugnant to the law of England. One clause empowered the Legislature to make provision for good government, and the better administration of justice. He submitted th»t the appointment of a judge by the Legislature was repugnant to the spirit of the British Law.

When his Honor accepted the seat of President of the Council he was- not n judge, but a member of the community. This Act enacted that he was— that is, the Legislature of the colony appointed a gentleman as i,id«n* <.i the iMipteme (Jmut, when the Queen said they should not, .md thoie'oi ■ he s.nd it was lepugnant to the spirit ot the Biimli 1 iw. Ho submitted on those aiouniN the Legislating had no power to pass that law .md that 1 ny did not operate to constitute the Court. The Attorney (sonei.il said his ilonoi was called upon to declare that* the Act of Couiu il was void. His learned I'fiend-s fallacy would he lonnd to depend on the construction of the word repugnant Repugnant did not mean diffeient from the law oi England, but contrary and inconsistent in spirit. It his learned friend's construction were right many of the laws in force here were repugnant to Bi.nsh law being different therefrom. Whb it lepugnant to the law of England that a judge sh.mld be a member of the Legisla ive Council ? It was rle*i ly not-ror the exclusion applied only to the lower branch of the Legislature. _ Ine very constitution under which we live was silent in reference to judges being members of the upper house. The exclusion applied to the lower house alone, which contemplated that a judge might be a member of the Legislative Council. But there was one matter left undefined, -the eligibility of a judge being President and the Parliament (which had large powers.) stepped m to do what was necessary for the peace, welfare, and good government of the colony. With that view it was the nominee council passed an Act, in the teeth of the charter to vest the whole powers of the Supreme Court and that the Governor might appoint a judge to avoid the mischief that might arise from a failure of justice. The power was co-extensive with the necessity ; it not. what was the use of parliament ? It would be a nar-row-minded, preposterous construction, and such as no iud-e embued with ideaß of the spirit of Constitutional Law would sanction. A narrow-mind might, snaillike, creep over the literal wording of an Act to nnd a flaw, but a constitutional mind would not put such a construction on the Act. Whatever the occasion, the mischief might be, the power of the Legislature was coextensive. If that Act were waste paper there was no remedy, and such a state of things would be a mockery. He (Mr. Smith) felt he was almost wasting time in arguing against such a thing ; the power of the Parliament was large enough for any emergency, and where the law had legalized the presence oi a judge in the Council surely the Parliament could step in and say authoritatively what was the law as to a judge accepting the office of President. But besides all that he contended that the passing of the Act in question was the exercise of the special power expressly given to make laws for the better administration of justice, by declaring the law affecting the vitality of the Supreme Court. He submitted that the Act was perfectly valid, and his learned friend had advanced no argument to show that it was not. It was not, as contended by his learned friend, an Act to appoint a judge, but a simple declaration authoritatively of what is the law. There had been no attempt on the part of the Legislature to usurp the power of appointing a judge. Mr. Knight replied that it was for his Honor to judge of the weight of his aigument. As to this not being virtually the appointment of a judge, but the declaration of the law, he remarked that such an occasion might arise when the Parliament should pass a repugnant law, and then who was to decide wheMier it was repugnant or not I With due submi-^on lie would say the judges of the Supreme Court. Thp *hole argument of the learned At-torney-General resolved itself into two branches, thai the Parliament had power to pass laws in cases of necessity, and that that necessity h.id arisen ; but he had thrown no doubt on the principle that it was lepugnant to the spirit of the British law for a Local Pailiament to appoint a judge. These points Mi. Knight commented upon at some leugth. The Chef Justice s-ud. When this piisoner was called up for judgment an objection was taken to my jurisdiction to sentence him, on the ground that by the acceptance by my learned colleague of the office of President of the Legislative Council, he had? in fact, vacated his office of Jud<*e, and that as the Charter of justices provides that the Supreme Court shall consist ot two judges, the avoidance by one judge is 3 cessor of the jurisdiction, and that the matter in question is coram nonjwlicc, and that there is no power to sentence the prisoner. On that occasion vaiious arguments were put forth by the learned counsel for the prisoner, and replied to by the learned Attorney -General ; and feeling the vital importance of the question, I thought it my duty to take time to reflect, and to take further time than otheiwise I should have done in older to exhaust all the sources on which the decisions of the com ts have proceeded, and had nothing intervened since then, it would have been my duty to have pionounced my opinion of the points raised by counsel ; but that necessity lam now relieved from to this extent that, in the interval, an Act has been passed by the Colonial Legislature to remove the difßculty ; and the only question for me to consider is, whether the Act be a valid law, binding on me ? If that law be binding on mo, it is my duty to act in accoidance with it, and it would be a work of supererogation for me to pronounce an opinion on the objection orig inally mooted by the counsel for the prisoner. For instance, suppose I were to give an opinion in favoiir of the validity of the objection, what would be its value in the face of this Act ? My opinion would be of none effuct, if the Parliament had authority to pass this Act ; and therefore I say I am relieved from that necessity. The question is reduced to this : first, whether the Act now before me " An Act to declare the Law in the case of the Supreme Court becoming President of the Legislative Council," is a binding law ? and second, is it sufficient to attain the end it has in view ? If it be' there is an end of all difficulty. The learned counsel for the prisoner first directed my attention to some dicta of the Chief Baron of the Exchequer as to the power of the Judges to deal with Acts of Parliament . I can only tell you that, according to the practice of the present day, even Acts of Parliament that are unjust, provided that they are not contrary to the law of God and the law of nature, and piovided they are expressed in terms and unambiguous in meaning, the courts are bound to recognise, although they may interpret and construe them. On that received doctrine I shall act, as far as this case is concerned. That follows as the result of a careful analysis of the different Acts. Therefore, the first question is this : Is this a binding law on this Court ? Now I consider the argument has been fairly put before me on the part of the learned counsel for the prisoner. There can be no question that by the Huskisson Act, supposing a law were repugnant to the Law of England, there were two methods, by which it might become binding. Supposing the Judges failed to certify to its being repugnant, the Act would be binding; and even if they did certify, in the event of that certificate being given, the then existing Legislative Council had the power of adhering to the law. It may be conceded that the terms of the Australian Colonies Bill are different, but it contains a similar limitation with* the same means of curing difficulties. Then the question arises as to what constitutes repugnancy; on the one hand it has been contended that "it is repugnant to the Law of England for the Local Legislature to appoint a Judge; on the other hand, it is said to be limited to such laws as contradict the spirit, the essence of the British law. My opinion is, that a law passed by the Parliament of this colony would be repugnant to the law of England, if it was contrary to the fundamental principles of the law of England. I speak not here of such law s as are essential to the different necessities of the colony, but I think any law which contradicts the fundamental principle on which the superstructure of the law of England rests, must be repugnant. It is clear that as to the law of England, no authority short of the law of England can repeal that which is made by Parliament. As far as the law of this colony is an execution of the statutory powers of the Huskiflson Act, it is statutory, and if this case rested upon that branch within this Act, which affected to repeal the Huskisson Act, it would be repugnant. But the case does not rest there, and the very provision inserted for conferring particular powers on the Parliament of the colony, goes to establish that general powers were given to Parliament. According to this, on the first point, it appears to me safer to rely on the particular powers contained in the Australian Colonies Bill than on the general powers, because, although it may be conceded that the non-repugnance of the law of England may be .taken to pervade the whole Statute, yet any particular clause must be binding. By the 29th section of the Australian Colonies Bill, the Pailiament is empowered, from time to time, to make provision for the better administration of justice. Does the Act therefore, to declare the law, in the case of a judge of the Supreme Couxt becoming President of the Legislative Council, come within the scope of the power of that provision ? Of course, I pass by the argument adduced as to whether it is for the better administration of justice for a judge to be President of the Legislative Council ; for it has here no, weight at all. I also pass by the argument of the learned Attorney-General, that the Constitutional Act might be considered as having contemplated that a judge might be a member of the Legislative Council, and be entitled to all the rights and privileges appertaining to that office. I dou't dispute that for one moment, that a judge holding a seat in the Legislative Council has a right to the privileges of the office, and therefore has a right to become President ; but that is bfeside the question. The question is, how does the charter of justice affect the office of judge ? Neither of the arguments carries weight with me, as to the decision I shall feel it my duty to come to. I deal with the wouls of the Australian Colonies Bill in a different way, and look on the words "administration of justice," in the 291h section, as generic, and not simply the administration of justice in the Supreme Court j but it means the law as administered in all the Courts, the laigest and most comprehensive

sense ; and I think, under that section, it is competent for the Parliament to pass any law which facilitates the coinse of justice, whether in this Court or any other. But it is said, can they remove no impediment ? Assuming it to be such, as in the present case, supposing the effect of the acceptance of the office of judge to be so. It is one thing to s>ay the Parliament shall pass a law for the better administration of justice, and another to create a judge. Now, if I be light in my construction of the term "justice" used in this clause, it appears to me that whatevei impediment might arise in the working of that which is essential to the administration of justice, it must be legitimate for the Parliament to remove— it might bo cured by the Legislature. The Court itself is not "justice"' as heie mentioned ; it is only the machinery for the administiation of justice ; and if any impediment to its working should arise, it is surely competent to the Legislature to remove it. I apprehend it would be within the scope of the powers of the legislature, to prevent a failure of justice in this or any other court of the colony, wherever it lelates to a defect in the machinery. I am aware it has been said that it would be repugnant to the law of England, because it would be virtually creating a judge. But there is a wide difference between creating the office and appointing an individual. It is competent, for instance, to the legislature to create a third judge, or to reduce the constitution of the court, which is now two judges, to one ; but what could the legislature do ? Appoint a judge? No, but create the office, and the Queen must appoint the individual. The view I take is this : the word "justice" is generic, and must be taken in its most comprehensive sense ; therefore, though I am not prepared to say the learned counsel for the pi isimcr was not jnstified in the arguments adduced, nor that there may not be weight in those arguments, still I do not find the doubt of that nature that I am not enabled conscientiously to solve the difficulty, by holding that it was within the scope of the authority of the colonial parliament, conferred by the 29th sec. to pass this law. Neither am I piepared to say, under the second head, that the parliament has not the power to define the constitution of the courts ; but lam thrown back on the charter of justice, which provides for two judges, and who are they to be ? They are to be barristers of seven years' standing, appointed by the Queen, and arc-to hold office during the Queen's pleasure. The charter goes on to appoint, and the words show still fuither, the constitution of the court, and that neither of the judges shall accept, take, or perform, the duties of any other office ot place, profit, or emolument. That limitation forms part of the constitution of the colony, and it is one of the incidents that the judge shall be a barrister of seven yoais' standing. But, supposing parliament says, We choose to define that it shall be different, and that we will alter it, can it be said to be free from doubt whether they can do so ? I think not. Still there is sufficient to satisfy my mind that it may be fairly conceded to be within the scope of the legislature to lesolve doubts by pieserving the court of which I have the honor to be one. I cannot say (and I have given it the most careful consideration) this Act is so far out ot the scope of the powers gi\en to Parliament that I should be uairanted in saying it is null and \oid, 01, as has buen o' seived in the argument, that it is a piece ot waste paper. Holding it to be the duty of the judge to give effect to the Acts of the Lcgiflature of the colony, the superior authority of which I cannot question unless the case is clear and ceitain, and unless it had been shown to be beyond the scope of Parliament, in which case 1 should have been immovable, I am of opinion the Act is binding on me. But then another question arises; does the Act roach the picsent case? Now, the learned counsel for the prisoner has put it in this way, that the point of time in which this case is to be viewed is at that moment when my learnrd colleague was handed to the Presidential chair, and if there wore at that moment an avoidance of office — even for a moment — then, he aigues, this law would not restoie him. I ha\e to ask myself to take the mode which he suggests, does this law reach that moment? Because if it docs, then there never was a moment in which there was an avoidance. Now, observations ha\e been made as to the effect of a declaratory and enacting law. Ido not offei an opinion of the policy of the law, or an opinion as to the way in which it is framed ; but I may obseive that laws which are declaratory are held to bo i/nperativc. The Act in question declares and enacts that "the election of a Judgo of the Supremo Court of Tasmania to the office of President, and the acceptance by such judge of such office of President, has not affected or in any way vacated or deteimincd, and shall not affect, or in any way vacate or determine, his office of judge of the Supieme Couit ; and that such judge has held and enjoyed, and shall hold and enjoy, his said office of judge in as full and ample a manner as if he hod not been elected and had not accepted the office of President," &c. The electioi which piecedes the acceptance and the acceptance are both i prospective. It is Slid that, notwithstanding Mr. Justice Homo accepted the office of Piesident, he was then judge, continued judge, and still is judge; and 1 am of opinion the Act does reach the point ot time to which the learned counsel for the prisoner refers, and that it reaches a time antecedent, namely, the time oi elec tion ; and therefore retrospectively declares and enacts that theie never was a vacancy in the office of judge, and that in so doing there is no conflict with the Charter of Justice. It may be conceded that the 29th section says the legislature may, in certain cases pass laws for the better administration of justice, and therefore that it is not exempt from doubt ; but I must regard it as not out of the scope of the authority of parliament, and binding in its operation. For these leasons I must oveirule the objection.

A Wai\Ki,TJ about the Aoe or Horses. — A few clays ago we met a gentleman from Alabama, who gave us a piece of information in regard to ascertaining the age of a horse after he or she has passed the ninth year, which was new to us, and will be, we are sure, to most of our readers. It is this — after the horse is nine j ears old, a wrinkle comes on the eyelid at the upper coiner ot the lower lid, and every year thereafter he has one well defined wrinkle for each year of his age over nine. If, for instance, a horse has thiee 'Wrinkles, he is twelve — if four, he is 13. Add the numbei of wrinkles to nine, ami you will always get it. So says the gentleman ; and he is confident he will never fail. As a good many people have horses over nine, it is easily tried. If true, the horse dentist must give up his trade. — Southern Planter.

MURDKR O r THE HoX. Mr. DXIUMMOND'S IjirANT. — A letter ftora Avga has brought us the sad intelligence of the minder, on the 21st ult., of the Hon. Mr. Drammond's infant son, only seven months old. Mrs. Drummond was about leaving for the Hills, .md insisted on the wet nurse (a native) accompanying her contrary to the v, omans wishes. This demon the same night poisoned the baby with an opium bolus.

Jonathan and hi-> Match. — " Hallo, stranger, you appear to be tiavelling ?" Yei, I always travel when on a journey. " I think I have seen you somewhere.'' Very likely, I have often been there. " Mightn't your name be Cole?'' It might, but it isn't by a long chalk. " H«ive you been long in these parts ?" Never any longer than at present — five feet nine. "Do you get anything new ?*' Yes, I bought a new whetstone this morning. " I thought so, you'ie the shaipest blade I have seen on this road."