The Star. TUESDAY, JUNE 2, 1891. The Edwards Case.

Star (Christchurch), Issue 7179, 2 June 1891, Page 2

The Star. TUESDAY, JUNE 2, 1891. The Edwards Case.

After a long-continued, most ablyconducted argument, followed by five days of consideration, mature and < full, tlio Edwards case ha 3 come to a decision. It is not a unanimous decision by any means, as the public has a right to expect that a decision shall be in a question of such, constitutional importance. The public we mean has a right to expect simplicity and clearness in the laws made by the Legislature ; more especially in those dealing with the more important constitutional principles, the proper Bafegnards of which are the bulwarks of law and order and freedom in our country. The judgment is of three Judges to two, and the two methods of reading the law are as opposite as they can be. The Judges stand back to back, and then travel in different directions. Not the least curious part of this divergence is that it is occasioned by the simple question of the reading o£ a statute. The Chief Justice and Mr Justice Conolly read the fifth section of " The Supreme Court Act of 1882," firstly, with the concluding sections of the Bame Act ; and, secondly, with " The Civil List Act of 1873." They support Sir Bobert Stont, in effect, who contended that the later clauses of the Act of 1882 show the intention of the Legislature to make the settlement of the salary a condition antecedent to the appointment of Judges of the Supreme Court, and that the Act of 1878

fixes and regulates the number. According to that contention the Government of the Colony has, according to the fifth section of the Act of 1882 only unlimited power of appointing in case of vacancies and temporary retirements. Bead in that way, it was further contended by Sir R. Stout, the Act of 18S2 rectified whatever irregularities there might have been in proviouß appointments ; these • irregularities being, however, in his opinion, if irregularities at all, merely technical. In this contention, from beginning to end Sir Robert Stout carried with him the Chief Justice and Mr Justice Conolly. All three by their reading of the law harmonise it with constitutional principle. They arrive at the constitutionally Eound position that the independence of the Judges is guaranteed by the law. The opposite conclusion was arrived at' by the Court. Even in the most august assembly known to our Constitution the count of heads haa to rule. The count being against him, the Chief Justice had to pronouuee the verdict of the Court coutrary to his own opinion. We sympathise with him by reason or that very painful position. TV T e also should sympathise with this Colony if we could think the Chief Justice to have been wrong in hi 3 law. The argument against him was that the fifth section oJ the Act of 18S2 must be read by itself ; the later sections having nothing to do with the question of appointment, and the Act of 1873 being a mere Appropriation Act. It was supported by the contention that the constitutional principle which had grown up at Homo had not yet found its way into the Colonial statutes. The principle, Mr Justice Eichmond said, could only be used "by way of illustration." But the Legislature, having failed to make any legal provision — aa an examination of the various Acts bearing on the subject revealed — the judgment must be that the p.iwer of appointment under tho Act of 1882 is absolutely unlimited by auy consideration of auy kind. That was the conclusion of the majority of the Judges, and therefore it governed the verdict or the full Court of Appeal. The conclusion to which the majority of three came leaves us with a Judge who is without protectiou. Instead of being independent he ia destitute, so far as the emoluments of his office are concerned. The Constitution would like to see him on a height above the storms of party, out of the reach of hostile feeling of every kind, beyond the favour of any creature, removed from the reach of controlling power, The law has (according to three Judges) placed him between three alternatives, starvation, resignation, cringing in the Parliamentary lobbies while intriguing and supplicating for a salary, to which at present there is not even any pretence of any right, aa tho Court, by a majority, haa expressly declared. la other words, the three Judges have arrived at the conclusion that there is no legal protection for the constitutional independence of the Judges. In law (New Zealand law) there is, in short, no such thing a3 the independence of the Judges). Is it necessary for us to say which of theso contentions is correct P The view of the Chief Justice and Mr Conolly ia the broader view, and the view of their three brethren is the narrower. Tho former leads straight to the constitutional principle of judicial independence; tho latter by tho help of the " illustration " received from the principle, leads equally straight to the place where that constitutional principle disappears. For as there is no longer any Act of Settlement ; for as the traditions of the Revolution aro no more than illustrative myths ; for as tho fond belief iv the impossibility of a Judge Jeffries is a delusion— a Government can appoint as many Judges a 8 it pleases, leaving their independence to the winds ; choosing men of unscrupulous character, animated by party or class motives, to do its bidding without direct emolument; trusting to live, if necessary, by the Bale of verdicts. Far be it from ua to say that such a state of thinga could bo postible among the men who are in uight in our generation. But that 13 not tho question. There, according to judicial interpretation, is the power to make a beginning of a degeneration, of which we can by the light of past history foresee the end. The mischic-f ia tempered by the power of removal by Parliamentary motion ; but it is a cumbroua power, and easily to bo defeated by unscrupulous Governments with unscrupulous partisans. The Attorney-General has obtained leave to appeal against the verdict of the majority of the Court. No one nan blame him for taking a case of such importance to the highest available tribunal.