Wellington Independent. MONDAY, OCTOBER 30, 1871.

Wellington Independent, Volume XXVI, Issue 3332, 30 October 1871, Page 2

Wellington Independent. MONDAY, OCTOBER 30, 1871.

Wearied as everybody is with listening day after clay, and night after night, to parliamentary debates, which, if they have any object, certainly have no resuit : debaies upon no motious at all, or upon motions which are not intended to be carried, and upon , bills brought in purely for the purpose of feeling the pulse of the legislative '■ body ; it is refreshing to see the members wake up and arm themselves for a conflict upon some groat principle which it is either wished to establish or which is threatened to be overthrown. It becomes the Legislature of a young colony which has to build up the principles of Government upon which its fabric is to be established, to be very careful of the soundness of its theories, I and jealous of the maintenance of all its ! landmarks, and we shall ever be disposed to criticise leniently the efforts ! which it may make in this direction. Sometimes, however, these efforts are so infantine, so demonstrative of weakness, and give so little promise of a great future and healthy manhood, that it is with pain we read them, and with reluctance that we exhibit them in our columns for perusal by the public. A debate of this character took place in the Legislative Council on Friday evening. The Hon Mr JVaterhouse moved the second reading of the Law Practitioners' Act, which has for its object the restoration of Mr Smjthies to the practice of his profession, and which our readers will recollect passed the Lower Housr by a large majority. "Without embarrasing the subject with the numerous difficulties which have cropped up since 1860, and which render Mr Smythies' case peculiarly exceptional, he based his arguments upon the great principle in volved in ex post facto law, and, in a very able argument, showed how abhorrent such law was to all persons educated under a system of free institutions. Unfortunately, however, the hon gentleman expended his learning and his eloquence upon what w N as selfevident and universally admitted, and lost the whole bonefit of his argument by a wrong application. He showed that by an act of 1861 the Legislature entrusted to the Judges the power of admitting persons to practise in the Supreme Court, and in 1866 controlled that power by enacting that no person who had been convicted of forgery should be admitted, or suffered to practise, under a penalty of £500. This, he said, was ex post facto law, and the levying of the fine upon Mr Smythies, who had been convicted of forgery, and who had also been admitted to practise before the act was passed, was a fine levied under ex post facto law. The law is ex post facto in adding to the punishment of the crime of forgery the inhibition to practise, and to this it was replied by the Minister of Justice that the same is done by all Legislatures, and has been done before in this colony, when persons convicted of an infamous offence were prohibited a seat in the Legislature ; the principle also was acted upon when the Fenians were driven from our shores. A people establish among themselves, for their mutual advantage, a system of jurisprudence, and allow persons to practise in the Courts ; but at the same time exclude persons of bad repute. This is done by the law of 1866, a law utterly useless' because it enacts nothing more than a principle rigidly enforced by the Judges, as was apparent in the case of Mr Smythies, who ob tamed exemption from the rule only by showing his offence to have been committed, if at all, without actual crime. But in this respect the act is mischievous, inasmuch as whilst it affords no protection to the public which it did not previously possess, it absolutely prohibits persons following their profession who may have been improperly convicted, or whose offence was, upon its merits, no bar. But there is another phase of ex post facto law upon which Mr Waterhouse did not lay sufficient stress, the taking asvay of existing rights ; and in this respect the law of 1866 goes beyond the legislation above alluded to. The colonial act mentioned does not unseat a member. Mr Smythies had submitted his case to the Judges (and we believe fairly so, for the Judges, though having many opportunities of doing so, have never hinted even to the contrary) and was by them admitted to practice, and was, at the passing of the act which imposed a fine for prac. Using, actually practising under this sanction of the law. The great injustice done by the act was taking away the right without compensation, and without a hearing ! but of this Mr Waterhonse made but little mention. This was an omission on the part of that gentleman, an omission which, we think, was fatal to his case, but we cannot speak so leniently of the argument of the Minister of Justice. The speech of the honorable and learned gentleman was, we think, bad in law, false in argument, and incorrect in facts. He laid it down as law that Mr Smythies was debarred practising in England by the Act of 12, Geo. 1., cap. 29. That act, as the preamble states, was passed for the purpose of preventing the fraudulent issue of certain writs, and after prohibiting such issue it enacts that if any person who has been convicted of forgery, Ac, shall practise as an attorney, the Judges shall make inquiry, and if he shall be found to have offended against the act — that is, shall have fraudulently taken out these writs— he shall be transported.

The act does not prohibit these persons practising, but, on the contrary, supposes that they will practise, because it says '• if they practise.'" This act has never prevented any convicted person practising as <in attorney, and their right to practise has always been left in the discretion of the Judges. The Minister argued that Mr Smythies was in no worse position here under the act of 18G6 than he would be if he were in England, and that the act of 1860 only assimilated the law of New Zealand , to the law of England, and was passed in order to prevent convicted attorneys resorting to the colony for the purpose of practising their profession. This argument, however, the true construction of the English act shows to be false. Further, he stated that Mr Smythies {.had obtained his admission by deceiving the Judges. As we have said before, as this has not been charged against him by the Judges we must believe it to be untruo until it shall be found to be a fact. The Minister of Justice intends to propose in committee the substitution of a proviso to the effect that in case any person excluded by the act of 1 806, shall consider his case exceptional, he may do just what Mr Smythies did — lay his case before the Judges, who are to decide upon his right to be admitted. This proviso will bring the law back to where it was before the act of 1800 was passed, leaving the whole matter to the discretion of the Judges, but with this difference, which certainly is a proper one, that if any person who has been convicted shall procure himself to be admitted without first submitting to the decision of the Judges, he will incur a penalty of £500. Should the act be passed in this shape, the colony will at least be indebted to Mr Smythies for procuring the repeal of this very obnoxious provision of the act of 18G6.