THE ROLL OF PRECEDENCE

New Zealand Mail, Issue 1636, 8 July 1903, Page 75 (Supplement)

THE ROLL OF PRECEDENCE

TEE CHIEF JUSTICE’S PROTEST. THREATENED RESIGNATION. The vexed question of precedence which has occupied, the attention of the Secretary of State for the Colonies since 1901, has at length produced important and unexpected developments in the protest addressed to his Excellency the Governor by Sir Robert Stout, CTiief Justice of the colony, on Saturday last. It would'' appear that as far back as August, 1901, when the subject of precedence was being discussed to some extent, the New Zealand Judges presented a petition to the King on the subject. They had, they said, heard with sui - prise and regret that it was proposed to alter the social precedence of the Chief Justico and Judges of the Supremo Court of the colony. There had, they pointed out, been no change in the precedence accorded to the Judges since the foundation of the colony, and as far as they were aware, the people of the colony had not asked that, any change should be made. This colony was once part of the colony of New South Wales, and so far back as in the year 1823 the precedence of the Judges in New South Wales was settled and mid continued in that colony since that date. In that colony the Chief Justice is placed immediately after his Excellency one Governor.

Continuing, they gave the table of precedence in Victoria, where the Lorerrior, Lieutenant-Governor, or Officer administering the Government is first, the Admiral second, and the Chief Justice third, and add that in other Australian colonies a similar table has been followed. Hitherto, they go on to say, in Neiv Zealand, precedence, save by courtesy, has never been granted to those who occupy no official position in this colony, but if the new table is approved, citizens who hold no official position will obtain precedence over those who do bold official positions. The table is also contrary to the order fixed by her late Gracious Majesty, and they humbly submitted that to the present occupants of the Bench and also : ex—Judges of precedence that has hitherto been enjoyed by them, without any wrong having been committed by them, is not in accordance with the constitutional usage of the Empire. Further, they pointed, out tliat thoir patents of office provided that their offices should be held, exercised and enjoyed by them during good behaviour, “together with all and singular the rights, privileges, powers, authorities, rank and precedence whatever,” t.o their said offices and places belonging or in any way appertaining, and they submitted that must mean precedence that would hereafter he granted. The proposed alteration would, so far as precedence was concerned, set that pr mi - sion in their patents aside. They ieib that the question of their own personal precedence was not so much at stake as the position that the Supreme Court Bench is hereafter to hold in this colony, and they submitted that to deprive the Bench of a precedence wi'joyed since the proclamation of the colony and similar to what Judges in other Australian colonies possess, would lower the dignity and interfere with the independence of the Supreme Court Bench in New Zealand. They submitted also that if the Executive Government of New Zealand was permitted to lower the precedence of the Bench, the independence of the Bench was threatened, and the patents of office, so far as precedence is concerned, were repealed. They finally submitted that it was. not for the advantage of any community ; that the Judicial tribunals should he belie ded and the rank of precedence, any more than the term o? office or the salary, of Judges made dependent on the ■ opinions of the Executive Departments of the State.

After the lapse of nearly two years, during which period the Premier had been on a visit to England the Secretary. of State for the Colonies (Right Hon J. Chamberlain), wrote to the Governor from Downing street, under date 22nd May, 1903 : “ With reference to previous correspondence on the subject I have the honour to transmit to your Lorslnp herewith a copy of a Table of Precedence for New Zealand, which I submitted to the King, and which has now received his Majesty’s approval. You will observe that the table is substantially the same as that proposed by your Ministers, and the minor alterations in their proposals which I suggested in order to bring into general harmony with the precedence proposed for the Commonwealth of Australia, have been concurred in by them. In submitting this table, I took the opportunity of laying before his Majesty the petition of the Judges of the Supreme and Appeal Courts of New Zealand, relative to theis, precedence, which was enclosed in your despatch No. 90, of the 28th August, 1901, and, m informing the petitioners that this has heen do*ne I am commanded to request that you will he good enough to point out to them that the precedence which is assigned to the. Chief Justice and Judges in the new table is analogous to that which is held by the Judges in

this country and in Canada, and to that whLoh it is proposed to assign to the Chief Justice and Judges of the Commonwealth of Australia, and to add that they may rest assured that neither on the part of your Ministers in reconn mending the change, nor his Majesty s Government in advising its approval, was there any intention to belittle the Judicial tribunals of the colony, or in any way to lower their dignity The table of precedence is as follows : 1. His Excellency the Governor, or (whilst acting in the place of the Governor) the Deputy-Governor, or Officer Administering the Government. 2. Naval Commander-m-Chief. 3. His Majesty’s Aiinistesa holding Cabinet, rank. 4. Privy Councillors. 5. Chief Justice. 6. Speaker fd the Legislative Council. 7. Speaker of the House of Representatives. 8. Puisne Judges. 9. Commandant of New Zealand Forces. 10. Knights of various Orders and Knights Bachelor, according to their precedence in the United. Kingdom. 11. Ex-Ministers or others entitled to retain the title of ' honourable.” 12. Members of the Legislative Council. 13. Members of the House cf Representatives. 14. The Solicitor-General. 15. District Court Judges. 16. Pay mast er- G eneral. 17. Public Trustee. 18. Clerk of the Executive Council. 19. Clerk of Parliaments. 20. Clerk of the House of Representatives, Wives shall have the same order of precedence as their husbands. With respect to persons entitled to precedence in the United Kingdom or in foreign countries or in other colonies, the order of precedence shall be regulated by the rules heretofore in force. A copy of the above despatch was forwarded on the 23rd inst. to the Chief Justice (Sir Robert Stout), who on 27th June wrote in reply as follows : “(1) I have the honour to acknowledge receipt of your letter of the 23rd inst., enclosing a copy of the despatch of the Right Hon the Secretary of State for the Colonies, dated 22nd May, 1903, regarding a new table of precedence for New Zealand. (2) I would most respectfully desire to make the following observations thereon, as the Right Honourable the Secretary of State has put forward certain excuses for the action taken by your Excellenev’s Ministers and himself. (3) The table 'lias been modified since the petition cf the Judges was forwarded for presentation to his Majesty. (4) It is said that the new tablo was prepared by your Ministers. The tablo gives them a higher precedence than Ministers of the Crown in this colony have hitherto enjoyed, and there is no alteration of the existing table of any moment, save in that respect, and in the recognition of the status of Privy Councillors. (5) The fact that the

table was prepared by your Ministers dees not appear to me to in any way lessen the responsibility of the Right Hon the Secretary of State in advising his Majesty to adopt it. Hitherto it has been assumed that the conferring of titles and the awarding of social distinctions did not emanate from Ministers in the colony. (6) The petition of their Honors the Judges, though transmitted for presentation to iiis Majesty on the 23th August, 1901, does not seem to have been presented to liis Majesty till this year. (7) The precedence to ex-Chief Justices and exJudges granted by her late Majesty has been set aside. It is, so far as I am aware, without precedent in the history cf tire Empire that an honour conferred by the Sovereign should, without any wrong being done by the recipient-, be taken away. (8) The statement that the precedence now granted to the Judges in New Zealand is analogous to that which is held by the Judges in England and Canada must have been made under a misapprehension, or the former tables of precedence in these countries must have been recently altered. Tidings of their alteration have not yet reached New Zealand. The highest judicial officer in England is the Lord High Chancellor, and, since the reign of Henry VLIL, he has held precedence next after the Archbishop of Canterbury, and before all of the Ministers of the Grown, and all subjects, whatever their titles, who are not- of the Royal Family. He is eighth after the Sovereign. The Supreme Court of New Zealand has ever exercised all the equitable jurisdiction the Lord Chancellor of Great Britain hath in England. (9) According to legal precedence in England, j*ll Judges of the High Court have precedence over his Majesty’s Attorney-General; but fhis table gives the present Attorney-General of New Zealand precedence over the Chief Justice and the Puisne Judges. (10) In Canada, Privy Councillors of Canada who are not Ministers of the Crown come after, not before, the Chief Justice of Canada and the Chief Judges of Canada. The only Privy Councillors recognised in the Canadian table are Rrivy Councillors of Canada. Y7e

have no Privy Council in New Zealand. There is, it is true, one Privy Councillor in New Zealand, but he is of the Privy Council ot England. (11) I do not know how the Right Hon the Secretary of State for the Colonies knows what induced your Ministers to recommend that a higher precedence he accorded to themselves than has been granted to other Ministers during the past sixty years. I iegret that I am unable to accept bis assurance that* there has been no intention to belittle the judicial tribunals of the colony. The precedent now set may be used to punish the Bench by further degradation whenever its acts are not in accordance with the views of the Executive. The independence of the Bench is therefore no longer assured. (12) The precedence of the Chief Justice is most affected by the new table, and I cannot therefore bo blamed if I assume that the uew table has a personal reference. Under these circumstances, iny duty seems clear. I am prepared, and desire to resign ih.v office so sc on

as arm a gem on ts are made for equitable compensation for my loss of office. As has already been stated in the petition presented to his Majesty, the terms of my patent of office have been violated, and T am therefore justly entitled to compensation on my retirement. (13) I would most respectfully ask that you would be good enough to forward a copy of this letter to the Rio-ht Hon the Secretary of State for the Colonies, ; (14) I shall submit the despatch to the Judges on their arrival here in a day or-two.” The Chief Justice has received an acknowledgment of his Tetter, but nothring further.