New Zealand Gazette AND WELLINGTON SPECTATOR. Saturday, April 8, 1843.

New Zealand Gazette and Wellington Spectator, Volume IV, Issue 235, 8 April 1843, Page 2

New Zealand Gazette AND WELLINGTON SPECTATOR. Saturday, April 8, 1843.

In our last number,- we refrained from offering any remarks either upon the power of the Court to frame the rule to which our attention was called, or admitting the power of raising the questiqn how, far such a power called for immediate repeal. - \ That all Courts of Law, should possess lull powers to frame laws for the regulation o| their practice, nobody will for a moment deny; and that all parties who may come within thi scope of them, should be expected to conform to them. ' ■ At the present moment we have been unable to ascertain whether the Supreme Court of this Colony, owes its origin to - a charter similar to those belonging to most other Colonies ; or solely to the Ordinance, sth Vie. No. 1, entitled "An Odrinance for establishing a Supreme Court." Our contemporary, it appears, rests his* arguments in favour of the validity of the rule, now the subject of discussion, upon the 13th sec. of the recited Ordinance, which provides that : — 13. The Court shall enrol, to practice therein as Barristers, such persons only as shall have been admitted Barristers or Advocates in Great Britain or Ireland, and to practice therein as Solicitors, such persons only as have been admitted as Solicttor, Attomies, or Writers in one of the Courts at Westminster, Dublin, or Edinburgh, or Proctors in any Ecclesiastical Court in England, or shall have served such term of Clerkship with a Solicitor of the Court, as shall be required .by the general rule thereof. All so enrolled shall be removeable from the Rolls of the Court upon reasonable cause. .He, them proceeds to discuss the .expediency of it. Before, however, we follow our learned contemporary on the latter point, we beg to say, that we differ with him upon his first pointj namely, the validity of the rulein question. Our contemporary observes — "we do not feel fully qualified to ' decide, whether the declaration to which Mr. Fox objects is such as ought not to be required of a barrister in passing," we. would just remark, that we doubt whether, even had our contemporary felt himself qualified to decide the point, his Honor would have felt himself bound by his decision ; and, therefore, shall not question our ability to decide the point ; but merely express our opinion, which is all we shall presume to do ; and, we trust, in such a manner' as, whatever may be its Worth, neither the style or the tone, will be such as can give offence in any quarter. First then as to the validity of •'the Rule of Court, which requires a Member of the Bar possessed of his credentials, by which he claims his right to practice, to declare upon his* honor, before" one. or more of her Majesty's Courts of law .in Great Britain, (which" is tantamount to his oath) that, "I have not at any time before, .or since my leaving England, done any act whereby I should be precluded from practising as such ' barrister-at-law." Now, we contend that, the ordinance under which his Honor claims ' the power to*

frame his Rules of Conrt, gives him no power . to, frame or enforce the Rule •in question. Out contemporary says — "All Courts have : the tight inherent in' their very constitution, 1 except so far as this right may be qualified by positive law." Admitted, and here our contemporary and we are at issue, for we contend that there is a positive law, by which such a Rule of Court is not only, qualified but prohibited. It is an admitted axiom in British jurisprudence, that no man shall be called upon to criminate himself, and farther, that no man is called upon to defend himself before he, is accused. Now what says the ordinance — 23, It shall be lawful for the Judges of the Court from time to time to make rules for regulating the time and place of holding the Court, and the Practice and Pleadings upon all Indictments, Informations, Suits, and other proceedings therein ; the proceedings of the Sheriff, and other Ministerial Officers; the admission of Barristers and Solicitors ; the Fees- and Poundage to be paid to any Officer; Costs of Suits, and the taxing thereof; and all matters relating to the business of the Court, and such rulesfrom time to time to alter or revoke: Provided that the same shall not . be repugnant to any of the provisions herein-before contained. Now we ask our learned contemporary, whether since the days of the Star Chamber and the Inquisition, if he can refer to any Act of Parliament, Colonial Ordinance, or even a Rule of any Court instituted under ■either of the above or even under charter, in which such an enactment has been declared, or such a rule laid down, as the one now the subject of discusssion. Nay, we will go farther, and ask our contemporary, if he thinks he can name any individual in the whole circle of his acquaintance, who, as a member of any legislative assembly of the present century, would have proposed such a proyision as the following, in any Act of Parliament, or Ordinance framed for the Institution of any Court of Law — " Provided always, and be it enacted, that before any person shall be admitted to plead before such Court, or practice as an Attorney in such Court, he shall take the following oath, or make the following declaration, viz. : — " That I have never in my whole life, done any act for which, if known to a second party, would subject me to the consequences of any penal or criminal statute." We repeat, is there a member of any existing Legislative Assembly, who would propose such a clause? Where is the Assembly who would adopt it ? Even if such were possible to be found, we say, no Assembly would enact such a law ! If we are right, than no Judge is empowered by any Act or Ordinance to frame lules and regulations for the practice of his Court, is authorised to frame any rule which, as it is, to have the same effect as if enacted in such Ordinance itself, would be contrary to the principle of our Jurisprudence, and, consequently, inadmissible in our statutes, which must -be conformable to law; because, the authority to make Bye Laws cannot be construed to extend to making laws, exceeding in effect, the powers by which that liberty is granted. We are, therefore, of opinion, with all submission to the superior legal knowledge of our contemporary, and with every respect for his Honor, that the rule cannot be justified upon the principle of right. Let us now see how it is that our contemporary justifies the expediency, supposing the right to enforce the rule established. He very justly observes, in this latter question, " the whole community is interested ; because, if those rules are such that a gentleman cannot, without a violation of self respect, conform to, then the character of the profession must be degraded ; and the adminstration of the Law must suffer in an equal degree. It is the assumed tendency of the present regulations to produce this result, which we purpose to examine." We beg to say, we refer to one only. Our contemporary draws a distinction between a general rule, to which* all persous are bound to submit, and a particular rule, applicable only to a single individual, or to a few persons. The latter, in our opinion, "would be,' if possible, more invidious, if not much more insulting, than the former ; and, therefore, we pass on to the parallel case, as our contemporary conceives he has discovered " in the Bench of Magistrates. We have" taken the trouble to peruse 'the oaths tendered to gentlemen, named in the Commission of the Peace, but confess we are unable to discover the slightest allusion to any thing approaching to such a declaration as. the one under discussion. What may be the conduct of gentlemen here, after being sworn jn nnder any new ordinance which may contain any requisition of such a tendency, it is impossible "to sayj but at present they are relieved from the consideration- of such an alternative. Now, as to the legality of it as regards the' manner" ,iq ".which ,it was tendered to Mr. Fox,, we r believe whatever code of rules and regulations maybe laid down, they are not r valid until they have been proclaimed. The

rule as originally and published, we believe, required the following declaration—viz., "that I have not, at any time before or since, &c," but whether,'in consequence of the remonstrance of Mr. Fox, or from whatever cause, we. learn for the first time that, the words " a^nyftime before or " have been erased, or if n'ot'sp,' that in the instance of Mr. Fox they were«ty*be dispensed with. If such is the case, then we contend that it was illegal, as there had been no promulgation of the rule as amended, and if it is to be altered to meet individual cases, then the argument of pur contemporary in support of the reasonableness of the rule on account of its generality, falls to the ground ; and, con- . sequently, the reasonableness of the objection proportionately strengthened. Having stated our opinions upon the subject, we are not presnmptuous enough to suppose it is such as will carry any weight with it, at the same time, we could not have remained silent and thereby have been supposed to acquiesce in the view taken of the matter by our contemporary. Since writing the above, we have received the following letter, which his Honor the Chief Justice, has addressed to Colonel Wakefield, in answer to the document addressed to his Honor, and forwarded to him by'that gentleman.

Wellington, April 6, 1843. Sir, — I have received the memorial dated April 3, which you were requested to forward to me. ' That memorial is in its self of a very singular nature, but the names subscribed thereto are. such as to give a degree of weight to any document. For the information of the greater part probably of the memorialists, it may be proper to state that the declaration, which is deemed so objectionable, has been made and signed by two Barristers, whom I have no reason to believe to be_ inferior to their brethren in point of high principle or intelligence; and further that it has been approved by the Leader of the Bar of this Colony, than whom I am bold to say, there exists not a more sensitively or sternly honourable man. I mention these facts simply for the purpose of giving information. Having regard to the circumstances of this Colony, I am satisfied that I am doing my duty towards both the legal profession and the people of the land in refusing to enrol, as either Barrister or Solicitor of the Supreme Court, any man who will not consent to bring within the cognizance of the Court the course of his previous professional life. When the authorities at home, to whom in this and in every matter connected with the administration of Justice here I am responsible, shall tell me that I have acted erroneously, ' the regulation in question will cease to be enforced. I have the honour to be Sir, Very respectfully yours Willtam Martin. To Col. William Wakefield. We cannot agree with his Honor that the reasons assigned by him, in the above letter,, afford any justification of the obnoxious declaration. In point of fact, they have both been answered by anticipation in Mr. Fox's n letter to his Hono. — Ist. That two Barristers have made the declaration at Auckland may be true — but what were their private circumstances ? did they or did they not amount to compulsion ? and, in addition, have they or have they not been guilty of a neglect of duty towards their professional brethren, and, by their inadvertence in not objecting to the declaration, thrown the onus of doing so upon Mr. Fox ? 2ndly. There is no refusal on thepart of Mr. Fox to put his previous professional life into the hands of the Court ; on the contrary, he admits the power of the Court to. make the enquiry, if it thinks proper ; but he denies the right of the Court to make the enquiry of himself, and that in terms which involve suppositions derogatory not only to himself, but to the body to which he belongs.

In another column of our paper, will be found, the results of our last Horticultural Show. Whether the long prevalence of the late dry weather was occasioned b"y the comet, or what not, we had evident proof, that even the scortching effects of a comet, cannot . check the progress of vegetation in this part of the Colony. Though our collection of flowers, owing to the season of the year, may not < have been so numerous or varied as at other seasons, there was a marked superiority as to quality and quantity of all the culinary productions of the kitchen garden. We have been a constant attendant, for nrany^ years, at our great Sraithfield exhibitions at home, and we would fearlessly challenge Messrs. Gibbs, Phillips, &c. to beat' the productions of Port Nicholson. As a whole, we must say, we never saw any collection to equal the vegetables exibited by Daniel Riddiford, Esq., of the Hutt — whether for size, or purity of growth, of -every specimen. Inshort, we may fairly that the Judges were sorely puzzled to?cWose the .best among the good. One cabbage, grown, by Mr. - James, a cottager at Wade's Town, weighed forty-one pounds. Some excellent varieties of potatoes were exhibited, and we have no doubt, that had we been in possession, a year or two ago, of good seed, we would, ere this, have' exported potatoes to a considerable

a^Tnhrvrrrr' J F'- ?r "~'"'n'""a«(rnT ri|D — ~ -~^ amount. Mr. Wilkinson ; exhibited some potatoes, planted -at Christmas,, which, though not full grown, .yielded eight and three quarter tons to the acre. ' .Mr. Wilkinson's wheat/ grown at the same place, viz. — on the summit of our " barren J hiDs£M%ielded at the rate of forty bushels per^acre^s£ Messrs. Bowler and Smith sent a splendid specimen of Barley ; it unfortunately arrived L after- the Judges had left. We hope to be able to add an account of the results of an Agricultural exhibition, and we feel confident, the Agricultural Shows of the United Kingdom, could not beat us, for beef or mutton — taking a correct account of the food of each.

We have received three numbers of the New Zealand Journul, viz., October 15 and 25, and November 12. They contain a great deal of interesting matter, showing the anxiety displayed by our London friends for the advancement of New Zealand. We perceive that the cheap cabin passage system, seems to meet with every encouragement, and is likely to be carried out to a great extent. By that plan, these settlements will receive a constant stream of the most desirable class of immigrants, small capitalists and farmers. The ship Tyno was. to leave London in December, and the Mary in January, and we have no doubt they will be full of passengers. The rest of our papers were on board the Imp, which did not arrive till yesterday, so that our English news is rather scant. We shall, however, give copious extracts in our next.

We have neglected to notice the establishment of two breweries, one on Te Aro Flat by Mr. Masters, and the other on Wellington Terrace, by Messrs. Northwood and Drake. Real Port Nicholson ale and beer can- now be purchased, and we think the Colonists will encourage that which is produced in their own place.

' ■ We understand that the Susannah Ann is to be employed during the forthcoming season in whaling off the coast.

We have been authorised to announce, for the information of our Scottish Readers, that there is a most distinguished member of the Scotch Church on board the Phoebe, bound for this port, — either to co-operate with, or to relieve the Reverend Gentleman, who at present represents that body here. — Commucated.