NEW ZEALAND AND THE PRIVY COUNCIL.

Otago Witness, Issue 2572, 1 July 1903, Page 22

NEW ZEALAND AND THE PRIVY COUNCIL.

HOME COMirENTS ON THE DEFENCE,

DIVIDED VIEWS.

(Fkoji Ova Ora Cohbesposdent ) LONDON, May 2.

Naturally I am pleased to notice that my prognosis as to the probable effect of the Privy Council's remarkable pronouncement upon the judgment of the New Zealand Gourt of Appeal in the case of Bishop Wallis versus the Solicitor-general — viz., that it would er&ate a profound sensation when pubUshed,-=»has proved correct. It excited much interest and comment even in London legal circles, and evwyone watched- eagerly to see how such a tremendous slap in the 'face would be received by the New Zealand Government and Court of Appeal. And now the news has come.

Evidently the Premier was " much moved," for Mr Seddon has cabled to the Agent-general administering " beans ' r to their offending Lordships of the Privy Council "for their presumption in pretending to understand a subject co recondite as New " Zealand law, and for their impudence in daring to criticise the action of the Court of Appeal and tlie- conduct of tha Government Mr Seddon says : — "The Privy Council, in effect, state that the- Court of Appeal of N«w Zealand denied the appellants justice, and degraded sta dignity and independence by subserviency to the Executive Government. These charges, never, at anyrate, made in New Zealand against its highest court, have provoked much general excitement and indignation; and the Chief Justice, Sir Robert Stout, at the Court of Appeal on Saturday last, delivered a masterly and exhaustive refutation of their Lordships' aspersions Hie surrey occupies six columns of the newspaper, but the following are a few of tlie points made : (Here- follows a summary of the statement.) The- Chief Justice then, continues Mt Seddon, in proof of the Privy Council's ignorance- of our la-w, gives a series of blunders they Lave made, most of them in recent years, in deciding other New Zealand appeals. One case, tiiat of Plimmer's, is cited in which the Council, in ignorance of a colonial statute in 1854- expressly foriidding the making of a. certain class of ccnta-act, decided that such a contract could be made."

Noticing Mr Sc<?don's telegram, the Daily Newa says: " This matter brings into greater prominence than ever the demand for a representation of colonial lawyers on the J-udioial Committee of the Privy Council. If Mr Seddon^ statements are correct, tlie thing is a scandal, and. the more so as no moans exiafc of setting right a matter which lias now paas n d through the Supreme Appeal Court of the Empire."

A summary of Sir Robert Stout's reply to Lord Macnaughfcen has been cabled and published. It has rather made some disrespectful' people smile to find the great Imperial Court of final judgment so vigorously (handled by a colonial judge and exPremier. Still, there does seem to be an impression, at this side of the world that I/ord Macnanghten, Lord" Lindley, Sir Ford North, and' the other members of the Judicial Committee cannot be taught " very " much by their colonial juniors. The general tone seems to be that, perhaps, it was a pity the Privy Council dul not " let down " tho New Zealand authorities " more gently," go as to spare then' sensitive feelings, poor things ! though they" were clearly in the wrong, if fbeaug- recognised that colonists in. general, and New Zealanders in particular, ai?e exceeding sensitive as to the perfection of their home-made institutions and deeply resent any criticism which may apparently imply any falling short of absolute perfection.

Such a, view manifestly pervades The Times' leading* article on thp matter, which aays : "It would not be right, evpn if it were possible, to ignore the remarkable protest made by the judges of the Court of Appeal of New Zealand against the judgment of the Judicial Committee in ' Wallis and others v. the Solicitor-general of New Zealand.' Sir Robert Stout, the Chief Justice, is well known as one of the most capable of colonial judges, and a true friend of Imperial unity; and among the puisne judges are men of acknowledged ability. It is to be regretted that they 6hould think it necessary to record a formal protest against the 'aspersions" cast upon the colo«aal court, to charge the Judicial Committee with ignorance of the procedure and etatuto law ofxthe colony, and with having committed 'a series of blunders '"in deciding New Zealand appeals. It is unfortunate that judges who recognise the existence of a nehtral tribunal as 'a great and noble ideal' should be moved to declare from their places that, if members of that tribunal are not acquainted with the system which they interpret or administer, they may unconsciously become the workers of injuptioo and weaken ' that Imperial spirit which is the true bond of union amongst his Majesty's subjects ' All this is to l>e regretted, even if the judges who are wounded o\prratp. ns ive are inclined to think they do, th^ir grievance. Even more than upon legal leaning or aenmon thp success of puch a :ourt as the Judicial Committee depends ipon mutual raspect, the careful observance of amenities and onurtesie 1 -. Worp- the protest based on a mistake, tiie possibility of it is to be deplored. That the members of a court whose decisions are reversed should fronv time fco time feel aore is a matter of course. The protest of the New Zealand court E3 something much more serious, and m^-riis respectful attention."

After summing 1 up the Court of Appeal judgment. The Times observes that tlie NewZealand Court of Appeal apparently took too narrow a view of the trust, and. that tlrp»e was no evidence of the Crown being '■ deceived." but goes on to point out that evidently " t.lie root of the (rrievamm is nofc in the conclusions of the Judicial Committee, but i:i the langiiii^e of the judgment." On tins head The Timer remarks: "No doubt tlic able iitdg* who delivered the jutla-nifit obiecLed to (Lord Macnaughfcen). and tho-p w-ho conourrpd wirh him (Lord LindW, Sir Ford North, and Sir Arthur Vv T i!i«on) would entire-lv disclaim any inren■.oii to disparatjp th«* irx'p'ienclpnce or oapa--itv of tlie court Probablr thpv would be jlarl to t.oi7<» the opportunity of savin? so. In one point of vkw tip pnevnme is a. n^rr matfpr of wordt ■•rid form. Bin words and form r^av pam -nlirn tho thinir :ioruf<!V fi-Jid in it=flf would not Some r,la"v% iCip-ik-ing- wa« pr'ity fvm to nmf >-00-iPr < r lator. ■s io certain Kinetice of judi(.ijl uiteiauc s.

Judgments might be a little duller, but they might not be less sound, if the utmost attention were given to the susceptibilities of courts which are as independent as our own, and which resent as keenly as ours what they think to be grave charges." The Daily Chronicle remarks : "Sir Robert Stout, the Chief JustiC3 of New Zealand, has been accusing the Privy Council of having 'pronounced judgment trader misapprehension ox ignorance of colonial laws,' and has lamented that as a tribunal ' unacquainted with the laws it is called upon to interpret, it may unconsciously become a worker of injustice.' Criticism of this kind, although ratwtly indulged m by such a high authority or expressed in such trenchant terms, is not new in tlie colonies. . . . There have been occasions on which its judgments and the reasons for those judgments have been ridiculed or resented m terms similar to those which have been employed by the Chief Justice of New Zealand. ... If the Privy Council is to continue to command the confidence and respect of the High Courts of the Colonial Empire whcee decisions are subject to its review, its constitution will certaiuly have to be remodelled on lines more in accordance with the changed and changing conditions of colonial development and expansion."

" There seems to be no parallel " (say? the Pall Mall Gazette's " Junicr Devil") "for the excitement in fche judiciary and legal circles generally in New Zealand at some remarks of Lord Macnaughten's in the judgment of the Judicial Committee delivered last February. As more is likely to be heard of the case it may be worth while to cite some of the passages complained of."

The same journal comments editorially thuswise: "There is a terrible pother in New Zealand over a judgment delivered last February, in a Privy Council appeal from, that colony, by Lord Macnaughten, and the- High Court there has been letting itself go for all it is worth in indignant protests against the impropriety ond injustice of t.he criticisms fco which •it was therein subjected. Lord Macncughten has a vigorous ard hard-hitting way of expressing him&elf that is Ilia own, and the dphveranep> that has provoked all this etrong feeling might certainly have been couched in terms less calculated to wound the susceptibilities- of colonial Judgea. If he had not adopted the tone of puch a very superior person and had employed more diplomatic phraseology in administering his reoroofs, it i* quite on the cards that the soundness of his judgment would havo been ar ppted without demur. For that it a.ppeari to be a perfpctly sound one will, we fancy, be the ■^iew of every lawyer who peru-es it. It would be just as well if Lord llacnaupliten and other members of the Judicial Committee, wlien pronouncing their decisions in future, wei>e to bear in mind that it is impolitic, except w.hen irn.pcratively required, to say a word questioning tha independence or lowering the authority of a local tribunal in the country whers it is at the head of the legal administration."

But tho Morning Leader, hastily taking for granted that the New Zealand Judges must know h^st — that being such a democratic community, after its own heart ! — saya: — "It is not that bhe Judges v. ho =it tipon tho Judicial Committee are not all lawyers of profundity. Ths».t is an accident in spite of wliich the English Bcnoh has achieved and maintained a great; reputation. The trouble is that they cannot possibly have an adequate knowledge of all the procedures and all the statutes which obtain in various parts of the Empire, and are, therefore, lia-blp to be misled by counsel who are most likely no better informed. It is with such a faulty equipment as this that the Privy Council ventured *o attack the New Zealand Court of Appeal, with a result mo?fc damaging to its own author ity, not in New Zealand alone, but throughout the colonies. ' The Daily News re-mark.":— " All who care for the real interests of the Empire should note the opening, which we report elsewhere, of what may become ? very serious breach in the judicial relations between the Privy Council and the Judiciary of New Zealand. Tlip Jutbcial Committee of the Privy Council may be right or wrong; they may have shown tlie lgnornnoe of the law of that colony, and tho want of courtesy toward its Courts. i\llicli tho Chief Justice of New Zealand imputes to them. But be that as it may, a quarrel of this nature may have veiv far-rcaohmg consequences, and it shows how grpnt an Lmportince attache^ to the oft-mooted plun for a more rep rpsenta five body of Judges in tho final Court of Appeals for the Empire "

I have had th^ opportunity of talking over this case with an cnmiPnt legal and itidicial authority, who entirely supports the Privy Council, not mei-ply in thp matter of its judgment, but also in Hie strictures employed towards the Npw Ze-aland Executive and Court of Aopca!. With reference to Mt Seddon's cabled complaint that tliP Privy Council had accused the Npw Zealand Court of Appeal of denviiiff justice to tju» appellants, and of degradinsr it.* dignity and independence by snbspr\i<";ce to tlie Execurivp Government, he drew mv attention to the fact that -the relation.* between the New Zealand Executive and <!ip Court of Appeal— the mention of whuh by the Privy Council Sir Robert Stout and Mr Seddon so strenuously denounced — wore expressly sot forth in the Government's own printed statement of the ca=e. and formed narfc of the pleadings presumably drawn up by Sir Robert Stout, who oriq-inaliy was counsel for the (iovernm^nt in the case The Privy Council thus simply commented upon facts deliberately 'tafpd on behalf of the Govprnme-it It therefore =f>ems absolutely childish that juiy complaint «=liould have been made upon' tin* bead. Tf the Government and Sir Robert Stout disliked attention bping ea'lpd to the relation which had been set up betwppn thp Executive and the Court of Appeal, they should have been careful not to mention it in their printed case : but they clio-o to recite those facts, and therefore the Privy Council was not only justified in commenting upon the matters before it, but v/x, virtually obliged to <lo so.

"In my opinion." continued my friend, "the Judicial Committee acted qmtp rightly in overruling the New Zealand Court of Am>pal on every point raised, and in view of the (facts I do not see how it can be said that the wording of the judempnt was at all too strong. The Solicitor-aeneral holds the position of protector of charitable trusts, yet, if he thought that the functions of rhe tni^t «hould liave been exercised carl'er, why did he allotv co many yeax£ to pa.--=" by w .fhout calling on the trustees to j-f rform their part, and ti-liv did hp wait till tlie UiuUcs weie a'jout to opea a

school and then contend that the grant had become void because they had net dono so earlier? AgaTn, when the Court of Appeal stared as a pleading that the Executive Government had determined to take a certain course, and further «ud it would have interfered against the wishes of the Executive, can the Privy Council be blamed for asking, ' What has the court to do with the Executive?'

"It seems to me," he remarked in conclusion, " that on its own showing the Court of Appeal refused to do justice because the Government did not wish this to be done ; and if that does not call for sharp criticism on the part of the highest tribunal I really don't know what would. And now you have my views on the subject. You may take them for what they are worth."