JUDGE EDWARDS' CASE.

Otago Daily Times, Issue 9117, 16 May 1891, Page 3

JUDGE EDWARDS' CASE.

THE CORRESPONDENCE PILED. The Wellington Post states that in additio and supplementary to the formal defence in th action brought against Mr Justice Edwards b; the Attorney-general, there is a long affidavit i: which the correspondence between the lato am present Government iB embodied. Tho firs step taken by the Hon. Mr Ballanco was oi February 23, in the form of a letter to the Chic Justice, in which he wrote:—" I noticed in you; letter of February 17 you atated 'Mr Edwards i to take the Napier sittings of the Supreme Court early in March,' and in view of that con' tingency I would respectfully direct your atteul tion to the following:—That in a note attached to the papers presented to Parliament by tho late Government, it is Btated that his Honor the Chief Justice entertained doubts as to the Governor's power to appoint more than four puisne judgesof tho SuprcmeCourtexceptduring pleasure, and, in consequence, Mr Edwards informed the Government that in deference to the Chief Justice's opinion, ho (Mr Edwards) would perform no judicial act as a Supreme Court judge until after the meeting of Parliament, subsequently after a consultation with tho Attorney-general the Chief Justice finding that judges of the Supreme Court had on several occasions been appointed before vacancies had actually taken place or a salary provided, felt it do longer necessary to press his doubts to tho extent of standing in the way of Mr Edwards acting as a puisne judge of the Supreme Court." The Premier after relating what took place in Parliament goes on to say : — "That Parliament not having validated the appointment of Mr Edwards and refusing to make any provision for him as a judge, the 'Government does not think Mr Edwards should exercise any judicial functions until Parliament . has made provision for his salary and had the opportunity of reviewing his position; and I may add that it is not the intention of the Government to propose to Parliament to make any provision for Mr Edwards as a judge of the Supreme Court. The Government therefore respectfully submits theso facts, to enable you to take such steps as you may think proper to avoid any consequence that might ensue-from the exercise by Mr Edwards of judioial functions under the circumstances." This letter having been communicated to Mr Edwards, on February 26 he replied to the Premier in a long letter, accompanied by two memoa. One of these set forth ths circumstances of his appointment, as already given in onr summary of his statement of defence to the present action. The other showed Mr Edwards' conception of the position from a legal and constitutional aspeot, seeing that" doubts had been expressed by the Government as to the validity of his appointment, and he himself entertained no such doubts." It is explained in the affidavits from whioh we are quoting that this memo, does not appear amongst the papers filed, " because the facts therein stated have been found in some minor and immaterial particulars to be inaccurate, and because I have in some respects modified my views as to'the deductions of law therein set out, although my own view as to the validity of theappoio tmeo thas been strengthened, and because my argumeuts of law are properly submitted to this honourable court in open conrt only." In writing to the Premier Mr Edwards says, " With reference to that part of your letter which appears to infer that the doubts which have been raised affect the validity of my appointment only, I have the honour to call yonr particular attention to the firstmentioned memo., herewith endorsed, from which you will see that doubts so raised affect the validity of other appointments besides my own, including that of a judge who is still exercising his functions. In this connection I have the honour to add that I believe it is erroneous to suppose that the bill to amend ' The Supreme Court Act 1882, and to provide for the payment of an additional judge,' which was introduced in the session of 1890, was intended to validate my appointment alone, and that it will be found— I believe—it was, so far as the removal of doubts was concerned, intended to be a general measure removing all doubts as to the validity of any commission heretofore granted by bis Excellency the Governor in tha name and on behalf of her Majesty to any judge. With reference to that part of your letter which States that the Government does not think that I should exercise any judicial fnnctions until Parliament has provided for my salary, aud has bad the opportunity of reviewing my position, I have the honour to say that, as the question of the validity of my appointment is a question of law alone, I conceive, with the greatest respect for Parliament, that Parliament is not the proper tribunal to review my position, at all events so far as the validity of my appointment is concerned, and that if I were to accede to your proposition in this respect, I Bhould bo demonstrating by example that it is within the power of the Government to interfere with the independence of the judicial bench. Referring, however, to the interview of tho Hod, Attorney-general with his Honor the Chief Justice upon this subject, and t6 the suggestion made of the Hon. Attorney-general that it would be in the public interest that I should not exercise judicial functions until some reliable opinion had been obtained as to the validity of my appointment, and that with that end it would be desirable to obtain the opinion of ihe Attorney-general and Solicitor-general of England. I have the honour to say that if the Government is of opinion that it is in tbo public interest that I should cease to exercise judicial functions for the period necessary to enable such opinion to be procured, if possible, from the Privy Council, and if not, then from Her Majesty's Attorney ■ general and Solicitor - general for England, upon a case containing all facts which the Government and myself think esßential to enable a proper opinion to be obtained, as well S3 a statement of all arguments which the Government and myself shall wish to be submitted for consideration, then I am prepared, under proper conditions, to accede to that proposition. The Supreme Court sittings at Napier commence on Monday next, and I fear that it will not ba possible, at this late stage, to make any other than the existing arrangement for the despatch of the business there; though if any such arrangement as is suggested is to be made, I personally should prefer that it should conclude at once." In sending a copy of Mr Edwards' letter as above to the Chief Justice, the Premier states: " Referring to the two last paragraphs of that letter, I have the honour to state that the Government is not prepared to make any conditions as to Mr Edwards presiding at the Napier Bitting of the Supreme Court, and the Government has already expressed its opinion that Mr Edwards should not exercise judicial functions pending the decision of Parliament. The proposal to submit the matter to the Privy Council or law officers of the Crown in England requires mature deliberation, and I understand that though the Attorney-general mentioned the Privy Council to your Honor, he did so as one of several courses that might be adopted; and it seems to the Government that any proposal of this kind must depend on whether the parties could agreo upon a statement of case which might be submitted to that tribunal. The Government therefore must ask that some arrangement may be made by which Mr Edwards shall cease to exercise judicial functions." On March 14, the Premier wrote to Mr Edwardß informing him that as Parliament had not made provision for the expenses of a commissioner after March 31, the Governor-in-Council had been advised to revoke the commissionership from that date. At the came time the Premier conveyed to Mr Edwards the thanks of the Government for the services he had rendered as a commissioner. To thi3, Mr Edwards replied on March 16, pointing out that there were still pending a considerable nnmber of applications to the commissioners (some of them heard and standing over for judgment, in order that it might be ascertained whether tbo Legislature would authorise the commissioners to remove certain formal defects, and some adjourned for hearing, for a similar reason); that there were ono or two for hearing which no date had yet been fixed; and further, that a large nnmber of additional applications were likely to be lodged on March 20, when the time for receiving applications will expire. Of this letter the Premier merely acknowledged the receipt On April 14 Mr Edwards forwarded to the Premier copies of papers served upon him at the suit of John Aldridge, and asked whether, as the powers and prerogatives of the Crown were directly questioned in tho matter, and as tte action arose out of acts regularly done by him in hi 3 official capacity, the Crown law officers would be instructed to defend the action ? The Premier replied, on April 17, that" this Government has never recognised your status as a judgo of the Supreme Court, and is not prepared to instruct the law officers of tho Crown to defend any action which may be brought against you." A prompt reply was sent on the same date by Mr Edwards, in which he says:—"l have to point out to you that you are in error in stating that my status as a judge of the Supreme Court has never been recognised by the Government, though ifc may be that it has not been recognised by the Ministry at present holding office. I hold a commission as a judge of the Supreme Court, regularly issued by the Governor, under the seal of the colony, upon the advice of the responsible advisers for the time being of the Crown. If the validity of that commission depends upon points of law, of which the judges are the only proper exponents, and it is in no respect affected by the recognition or nonrecognition of the Ministry of the day: if it be true, as alleged by you, that my commission is invalid, and that I am consequently improperly usurping tha office of a judge of the Supreme Court, then it is the plain duty of the Ministry for the ti.ne being, by appropriate proceedings in thi Supremo Court, to cause me to be ousted from the office which I am alleged to be usurping, and not to stand by as indifferent, publicly declaring, however, that my commission (which is regular in form, at all events) is invalid, while that commission is being attacked by a felon regularly imprisoned in the public prison. I have the honour, therefore, to request that you will cause the law officers of the Crown to bo forthwith instructed to take appropriate .proceediugs to cause me to bo ousted from the office which you allege lam usurping. I have the honour further to request that you will in-

foim me, at the earliest possible moment, whal course you intend to take in this matter, iv ordei that in view of the proceedings against mt which are undertaken by the Crown, I may cause counsel to be instructed to apply to the 11 court to Btay the proceedings begun by tho felon c Aldridge, until tho proceedings undeitaken by v the Crown have been disposed of, I have the ' honour to add that upon proceedings being " regularly instituted by tho law oflicors of the Crown against me, I shall cease to exorcise t judicial functions until the determination in the a Supreme Court of these proceeding*.—l am, &0., f \V. B. Edwaeds " Next day tho Premier wrote informing Mr Edwards that the Government had nothing to add to the decision conveyed on April 17. The correspondence closes with tho letter of [ tho Under-secrotary for Justice to Mr Edwards' [ secretary, stating that as no money had been , appropriated by Parliament for the salaries of ! Messrs Edwards aud Sayers, the Government ! was unable to authorise payment thereof; and , Mr Edwards' reply that he was unable to . acquiesce either iv tho decision at which tho [ Government had arrived, or tho reason given iv ! the Under-secretary's letter. " If," he proceeds, " that the reasons were good, it would apply to . all publio services throughout tho colony, since no money has been appropriated by Parliament for any of them after March 31 last."