THE OTAGO DAILY TIMES MONDAY, APRIL 17, 1903. THE PORIRUA TRUST CASE.

Otago Daily Times, Issue 12647, 27 April 1903, Page 4

THE OTAGO DAILY TIMES MONDAY, APRIL 17, 1903. THE PORIRUA TRUST CASE.

The circumstances tliafc have arisen in connection with the Porirua ti*usfc case are certainly unparalleled in the history of the British Empire, The Judicial Committee of "the Privy Council, the supreme lesjal tribunal in the land, has reversed with contumely a judgment of the Court of Appeal of New Zealand, the highest legal tribunal in the colony, and, in doing so, has net hesitated to assail the Court in respect of its probity'and to attribute to it a subservience to the Government of the day. And the Court of Appeal, in deliverances thai) are certainly not lacking in dignity or vigour, has scornfully repelled, the taunt of want of independence, and has expressly charged the Privy Council with ignorance of the laws ox the colony. The Porirua trust case presents in its entirety, as Mr Justice Williams observes, a somewhat complex legal problem, but it is not difficult for even a layman to obtain a fairly sound grasp of the essential points that are involved in it. The history of the case was so recently, narrated by us that needless for

113 now to refer to it except in the briefest ' terms. It commenced in 1848 with, the intimation by certain Natives of-the Ngatitoa tribe to the Governor that they desired to present a piece qf land near Porirua to Bishop Selwvu for educational purposes. The - Governor proving of the cession, a Crown grant was subsequently issued to the Bishop entitling him and his successors in trust to hold the land in question for the use and maintenance oS a school" so long as religious education, industrial training, and instruction in the English language shall be given to the youth educated therein or maintained thereat." It is by both the Privy Council and the Appeal Court that, in fact, no , school,was ever established.' Bishop Hadfield lias implied in a 'lately published letter that this assumption is incorrect. But, however that may be, no school has b/en in existence for very many years. . The-revenue from the endowment was indeed insufficient to maintain, a school if, in the'paucity of probable pupils, there had not been another reason why a school should not have been maintained. And when the trustees applied a few years ago for the sanction of the Court to a scheme for the application of the funds, under a wellknown principle'of English law, to a purpose conforming as closely as they could ( devise to. the object expressed in the Crown grant, the fact that there was' no 'school in existence at Porirua was relied upon by the Solici-tor-general, representing the Government, in. support of the contention advanced by him that the trust had lapsed and the land consequently reverted to the Crown, and that the Supreme Court, to which the application 1 for leave to divert the cbairity . had been addressed by the tvfstees, had no jurisdiction to entertain the request. This contention, it will be seen, raises the qucztion of the source of the title to the land • And it is not necessary for us, in looking at the legal aspect of the controversy, to consider any question other than this. Regarding it the opinions of the Privy Council and the Appeal Court are in conflict. The disagreement is a fundamental one, directly affecting the views that are' respectively taken by them of the case. The Appeal Court says that the Crown was the douor and founder of the charity. The argument is succinctly stated by the Chief Justice: "The fee simple was in the Crown, and the. Crown gave that to the Bishop. The legal title came from the Crown, and in that sense the Crown was the donor." The Privy Council holds, on the ether hand, that the root of the title was the Native j cession and not the Crown grant. It j asserts, moreover, that at the time the land was ceded the Native chiefs i were " entitled to dispose of their! lands, as they pleased, subject only to j a right of pre-emption in the Crown." | Whatever may be said upon the poiut i of the root of the title, it is clear, | from the authorities quoted by the j Co-urt of Appeal, that the Privy! Council hat erred in its statement of j law in the passage we have quoted., And it is equally clear that the law it, has now laid down, that the root of title is Native cession, ib not only contrary to . every ' Now . Zealand decision 011 the subject, but it, also inconsistent with previous judgments of the Privy Council itself. The principle* upon which the Crown grant has been constituted an absolute root of title have been expressed in numerous judgments. If they were departed from the danger might arise —it l " — been recently pointed out by Mr B-U; who was leading counsel for the Crown in the Porirua case—that Natives, having grievances against the Crown in "respect of the acquisition of their rights, might claim to enforce such grievances in the Courts against the innocent grantees from tho Crown. It is only by regarding transactions with the Natives for the cession of their title to the Crown as being "acts of State," which are not ' examinable by the Courts, that any security is afforded to land titles in the colony. The proofs the Chief Justice and Mr Justice Williams furnish of the novelty of the law as it is expounded by the Privy Council in the Porirua case are too conclusive to bo disregarded. The Chief Justice goes the length of deliberately assert- . ing that the members of the Judicial: Committee of the Council " have I shown that they know not our statutes j or our conveyancing terms or our! history." The employment of lan-1 guage of this, description by an | inferior towards a superior Court, we j need riot say, is unusual. But the: occasion is itself unusual. Mr Justice ' Williams justly complains that the j Court of Appeal has received grievous! and unexampled provocation. It has j been assailed by the Privy Council in ' unmeasured terms and in an imprece- j dented manner. In this regard the j Privy Council has not set a good example. Nor hat, it been faithful to ; its high traditions. Mr justice Williams', in a few weighty sentences, contrasts the terras in. which the Privy Council has 'aspersed the Court of! Appeal with tl|e methods practised by tlu judges in the colony when decisions of the inferior courts come •before tliepi for review. The judges, he says, even when holding that the decision of a 'distriql judge or magistrate which tli '-y' -e had occasion to overrule was unreasonable, have always i assumed that 'it was dictated by good ; faith. To have implied the contrary ! would have been to shake the confidence of the public in the district ; judge," or magistrate. The Privy Council lias jiofc hesitated, however, to impute to tjie learned judges of the Court of Appeal the worst faults that, could possibly be ascribed to them, j They were, the Council declared in i effect, prepared to sacrifice the dignifcj j and independence of the Court and do j the biddiiig of the Executive Govern-, ment. To charge the judges with! amenability to political dictation is to bring against them a more serious accusation than to charge them with incompetency. It is not surprising, therefore, that the Jourt of Appeal ' has replied with warmth and indignation to the Privy Council's gratuitous attack upon it, The aspersions, how- j ever, recoil Upon the Privy Council j itself. The Court of Appeal is re- j sponsible to.the people of the colony j for .its' actions. And their confidence j . in it will be absolutely unimpaired by j the unpleasant incident of the j Pqmnii-triist case.' Jfe jagjaljerg tare j

' lawyers of wide experience, lofty principle, and unimpeachable integrity. ■ Whatever may "be said about the questions of law that are raised in tho case now under notice, the public will rejest with contempt any sugges(tion that the Court of Appeal did not [honestly form the conclusions that were expressed in its judgment. What the sequel of the present discussion may be it is not easy to see. If the Privy Council is not acquainted with the laws it is called upon to interpret or administer, it may, the Chief Justice points out, unconsciously become a worker of injustice. And Mr Justice Williams seems seriously to douSt the propriety of the maintenance cf the system under which decisions of the colonial courts are reviewed by the Judicial Committee as at present constituted. I I That Court, he says, "by its imputa- | tions in the present case, by the ignorj ance it has shown in this and other ' cases of our history, of our legislation, 1 and of. our practice, and by its longdelaved judgments, ha-s displayed j every characteristic of an alien tribunal." It may be that the remedy may ultimately be sought in th. appointment of a truly Imperial Court of Appeal which shall include representatives of the judiciary of the self-governing colonies. In the meantime, however, It would be a desirable thing, when decisions of the colonial Courts are remitted to the highest Court of the Empire for review, that the colonial bar should be adequately represf iited at the argument of the : cases before this tribunal,