FRIDAY, MARCH 14, 1890. THE NEW JUDGE.

Evening Post, Volume XXXIX, Issue 61, 14 March 1890, Page 2

FRIDAY, MARCH 14, 1890. THE NEW JUDGE.

The racent appointment of Mr. W. B. Edwards as a Judge of the Supreme Court is likely to occasion a large amount of legal and political controversy. It is extremoly unpopular, wo believe, with the legal profession in the South, and the right of the Government to make it ia openly questioned. The subject is an important one, and it can be disoussed without any referenoe to the qualifications, professional or personal, of Mr. Edwards for either a seat on the Supreme Court Bench or for the office of Native Commissioner. In regard to tho latter appointment, Parliament authorised its oreation, and it was clearly within the functions of the Government to seleot a suitable person to fill it. Bnt the appointmont to a Supreme Court Judgoship raises very important constitutional questions. In the first place, the Civil List Act, 1873, appropriates the Bnm of .£7700 per annum to the payment of the salaries of the Judges of tho Supremo Court aB follows : — Chief Justice, £1700; four puisne Judges, each J61500. No provision has since been made for the salary of another puisne Judge. The Supreme Conrt Act, 1882, however, in clause 5, provides that "the Court shall consist of ono Judge, to be appointed by His Excellency the Governor, in the namo and on behalf of Her Majesty, who shall be oalled the Chief Jnstioe of the said Court, and of such other Judges of the said Conrt as His Excellenoy the Governor in the name of Her Majesty shall appoint." It is apparently on this general authority that the Government has acted in appointing Mr. Edwards, but it is contended, and rightly, we think, that the words do not Banotion tho oreation of an indefinite number of permanent Judges, but must be held subjeot to the express provisions of the Civil List Aot, by which Parliament determined the number of Judges who were to receive salaries. The general power olaimed to be given by. sootion five appears also inconsistent with the succeeding clauses, whioh provide that a Judge shall hold office during good behaviour, and that tho ealary of a Judge shall not be diminished during his commission. The whole wording indeed evidently refers to tho Judges as recognised and provided for in the Civil List Act, and direct provision is made in clause 12 for the appointment under certain oiroumstances of a temporary Judge or Judges, to hold office during His Excellency's pleasure, and to receive such salary as the Governor-in-Council shall direct. It was nnder this clanse that Judge Ward held his temporary appointment. Mr. Edwards, however, has not been appointed to a temporary Judgeship, bnt to be a Judge of the Supreme Court, although, by arrangement with the Executive, it is understood that he is not to exercise all the powers of a full-blown Judge. Thus it is anuounoed that ho is not to sit in the Court of Appeal. This raises new and most serious points, booauso tho arrangement is in direct contradiction of the provisions of the Court of Appeal Aot, 1832, whichprovidosinseotion4 that " the Judges of the Supreme Court of the said colony for the time being shall be Judges of tho Conrt of Appeal." It is pertinently asked, can the Exeontivo Government appoint a Judge of the Supreme Court upon terms which limit tho powers conferred upon him by statute ? The answer, we should think, must be in the negative. It would certainly be a most dangerous thing to admit the existence of Bach a right. It is also contendod that it is unconstitutional to have a Judge of the Supreme Court dependent on the Ministry of the day, or, through it, on tho annual vote of Parliament for any remuneration he may receive for his services. Yet this is the position in which Mr. Edwabds

is placed. Tha varionj points at isine are being much discussed atnongat the profession and in the. press, and we may be sure that tbe whole subject will be exhaustively .discussed when Parliament meets. Apart, however, frQm the points of Constitutional law involved, there are other objections urged with some degree of force against the Native Commissioner being required to undertake the duties of a Supreme Court Judge. If a highly paid Native Commissioner is required, surely there must he work enough for him to do. If there is not, the appointment should not have been made If there is, how can he attend to his speoial work while also required to temporarily undertake the duties of Mr. Justice Richmond on the Supreme Court Benoh? Judge Richmond has long been notoriously overworked, and yet now it is proposed to thrust bis duties upon tbe Native Commissioner. Mr. Edwabds is well known as a hard worker, when his health permits, bnt it is scarcely, we should think, possible for him or any other man to do Mr. Justice Richmond's work plu3 tbat which we may suppose to properly appertain to another office specially created by Btatuto and for which a salary of XI SOO is deemed a proper remuneration A further objection to the wholo arrangement is this, that Mr. Ebwauds'b appointment as a Supreme Conrt Judge does not appear to have been made, as required by law, " during good behaviour," but for a fixed period of five years, during which he stands in an altogether exceptional position, being debarred from claiming bis proper seniority, so that if one or two vacancies occur on the Bench within that timet the neVr Judges to beappointed will tako precedence of him. It is surely unconstitutional to place a Judge in such an anomalous position, dependent on the good will of the Ministry of the day for his ultimate confirmationin his office. Under anon a state of affaira Mr. Edwards can only be regarded as a Judge on probation for a period of five years, and he in no way ocoupies that independent position which it is necessary judges flhould occupy to command public .confidence. It is a great mistake to havo a 'Judge who is also a Civil servant, and who derives hiR emoluments not from bin Jndgoship, but from his Civil service appointment. Such wd imagine will bathe position in the present case. The Auditor-General wonld not under existing circumstances, we should think, authorise tbe payment of any salary to Mr. Edwards as a Supreme Court Jndge, bo bis salary will have to bo drawn as Native Commissioner. How Parliament will regard such an arrangement remains to be Been.