PETITION OF WORLEY BASSETT EDWARDS, ESQUIRE.

Appendix to the Journals of the House of Representatives, 1891 Session II, J-01

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Sess. 11.—1891. NEW ZEALAND.

PETITION OF WORLEY BASSETT EDWARDS, ESQUIRE.

Presented by Captain Russell, and ordered to be printed.

a To the Honourable the Members of the House of Kepresentatives of the Colony of New Zealand, in Parliament assembled. The humble Petition oe Woeley Bassett Edwaeds, oe the City of Wellington, in New Zealand, Esquiee, showeth as follows :— 1 That in and for many years prior to the years 1889 and 1890, your petitioner was a barrister and solicitor of the Supreme Court of New Zealand, in large practice m the City of Wellington, and that your petitioner was reputed to possess a special knowledge of the laws relating to Natives and to Native lands in the said colony. . 2 In the year 1889 the Parliament of the Colony of New Zealand passed a statute intituled " The' Native Land Court Acts Amendment Act, 1889," whereby provision was made for the appointment of a Commission, to ascertain and determine claims to Native lands, as upon reference session of Parliament of 1889, the Under-Secretary for Native Affairs by direction of the Minister of Native Affairs, waited upon your petitioner at his nffipe in Wellington and informed your petitioner that he, the said Under-Secretary, was directed by the Hon the Minister for Native Affairs then holding office, to ascertain whether your petitioner would accent the position of Commissioner under the statute mentioned m the last paragraph. At +L si me time the said Under- Secretary for Native Affairs then informed your petitioner that thl "Hon the Minister for Native Affairs considered that the Commissioner should receive the same salary and allowances as the Chief Judge of the Native Land Court, to wit the sum of £700 per annum and certain travelling-allowances; and that if your petitioner accepted the said appointment he would be at liberty to continue the practice of his profession as a barrister and solicitor. 4 Your petitioner thereupon informed the said Under-Secretary—as the fact was—that your petitioner had, in the preceding month of May had a careful balance of his books made for nurnoses for the four years which had elapsed since the death of a former partner, and that the result showed that your petitioner was making a net income of £2,250 per annum. Your petitioner also informed the said Under-Secretary that it was improbable that your petitioner could accent the said office of Commissioner unless he received the same salary and allowances as a TrXe of the Supreme Court, and unless your petitioner was also at liberty to carry on the practice of his profession as a barrister and solicitor; but that he, your petitioner, would consider the matter, and would let the said Under-Secretary know shortly his decision upon it--5 Shortly after this interview your petitioner again saw the said Under-Secretary, and intimated to him that he, your petitioner, had determined to adhere to his first impression, and that he would not accept the office unless he received as Commissioner the same salary and allowances as those of a Judge of the Supreme Court, and unless he was also at liberty to carry on the practice of his profession so far as it was possible to do so. Your petitioner heard nothing further about the matter for some time, and he considered that the negotiation was at an end. 6 On the 15th October, 1889, however, your petitioner received a message from the Hon. the Native Minister requesting your petitioner to call upon him at the Government Buildings. 7 You?pSnS didy so, and the Hon. the Native Minister formally offered your petitioner the appointment of Commissioner at a salary of £1,200 a year and £1 Is per day travelling-allowance,, with the liberty of private practice. The Hon. the Native Minister also informed your petitioner that it was estimated that the work would last from five to ten years 8 Your petitioner then informed the Hon. the Native Minister that since the said UnderSecretary had spoken to your petitioner upon the matter, a change had taken place m his'business arrangements, and that it was hardly likely that he could accept the appointment, and that if he did so he did iiot think that he could accept less than he had already stated—namely, the salary and allowances of a Judge of the Supreme Court with liberty of private practice. Your petitioner also informed the Hon. the Native Minister that his books had been balanced, and his income from his practice had been found to be as previously stated. I—J. 1.

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9. After some consideration your petitioner determined to accept the appointment, provided he received the salary and allowances, of a Judge of the Supreme Court, and he had a guarantee of a three years' engagement, and also the liberty to carry on the practice of his profession of a barrister and solicitor, but not otherwise; and he intimated this determination to the Hon. the Native Minister. 10. Your petitioner received no further communication from the Hon. the Native Minister for some time, and he understood that the said Minister had left Wellington shortly after the decision of your petitioner was communicated to him. 11. In the meantime your petitioner had an opportunity of reconsidering the matter, and the result was that your petitioner came to the conclusion that his acceptance of the office would practically result in his retirement from the practice of his profession, and also that it was improper upon public grounds that the office of Commissioner should be held by a barrister in practice; and on the 6th November, 1889, your petitioner wrote to the Hon. the Native Minister informing him that he must decline the office, even though the Government should be willing to fix the salary and allowances at those of a Judge of the Supreme Court.. 12. The letter mentioned in the last paragraph was and is in the words and figures following,— " Deae Sib,— « Wellington, 6th November, 1889. " Since my last communication with you on the subject of the proposed Commissionership, I have had the opportunity of considering the matter more fully, and of conferring confidentially with one or two friends from different parts of the colony, who are leaders of the Bar. " The result is that I have come to the conclusion that the acceptance of this office would practically result in my retirement from the practice of my profession. "I could not accept a brief from, or give an opinion to a solicitor who was concerned, or might afterwards be concerned, in any business before the Commission in any matter whatever without being exposed to the imputation of being indirectly bribed. " In the public interest it would be improper that there should be any business relations whatever between the Commission and any one interested, whether as party or solicitor, in any matter which could come before him. " On the other hand it would be impossible for me to give up my practice at the bar, which is not inconsiderable, for an appointment of quite an uncertain duration. " I have therefore come to the conclusion that I must decline the office of Commissioner even though you should be willing to fix the salary and allowances as those of a Supreme Court Judge. "In so doing allow me to thank you sincerely for the mark of confidence in me, which is involved in the offer of the appointment. " The office is, no doubt, a high one, and the powers conferred upon the Commissioner exceed those now possessed by the highest Judge in the land. " I have been exceedingly anxious to accept the office if I could see my way to doing so without a ruinous loss, but to do so would, I am convinced upon mature reflection, result in the complete destruction of my present business connection, both as a solicitor and at the bar, and I am not in a position to hazard that. " If you will allow me to make a suggestion, it is that the only way in which you are likely to be able to obtain a leading member of the Bar for the office is by first creating him a Judge of the Supreme Court. "The work of the Commissioner could then be assigned to him, and he could, without any material interference with his duties as Commissioner, also undertake the circuit sittings of the Supreme Court at Gisborne and Napier. " This would be a great relief to the Judges of the Wellington and Auckland judicial districts, and would enable the business of the Supreme Court in the principal centres to be disposed of much more speedily and satisfactorily than is at present possible. " In the opinion of many laymen, as well as the leading members of the Bar, the appointment of an additional Judge cannot in any case be long delayed; and if the work of the Commission is likely to last, as you anticipate, for five years, and the fees are made—as they can be, and in my opinion ought to be, sufficiently large to cover the cost of the Commission—the country would get the advantage of some judicial work without any extra cost; and those who are interested in matters coming before the Commission would have the satisfaction of knowing that their interests were dealt with by a judicial officer of the highest standing, who could have no interest, direct or indirect, to serve in connection with matters which came before him as Commissioner. " I am, &c, " The Hon. E. Mitchelson, Wellington." " W. B. Edwaeds. 13. In reply to the letter set out in the last paragraph your petitioner received from the Hon. the Native Minister, a letter which was and is in the words and figures following :— " Deae Sic,— << Wellington, 7th November, 1889. " I am in receipt of your letter of 6th instant, and in reply, while regretting that you have considered it necessary to decline the appointment which the Government sought to confer upon you, yet I cannot but admit there is a good deal of reason shown in your letter for such refusal. " The question raised in the latter portion of your letter is of such importance that I shall submit it for the consideration of Cabinet upon the return of the Premier to Wellington. " Yours truly, " W. B. Edwards, Esq., solicitor, Brandon Street, Wellington." " E. Mitchelson. 14. Your petitioner heard nothing further of a formal character upon the matter for a very considerable period. Your petitioner saw the Hon. the Native Minister once or twice, and had Some conversation with him upon one or two points connected with the subject, particularly with reference to the case of Poaka v. Ward, which was then under appeal to the Court of Appeal; but the Hon. the Native Minister said nothing to commit the Ministry in any way, either to adopt the

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course suggested or to confer any appointment upon your petitioner, if they saw fit to adopt his suggestion. 15. At some considerable time after these interviews with the Hon. the Native Minister, it came to your petitioner's knowledge that the Ministry had determined to appoint an additional Judge, and to assign the work of the Commission to him; and it also came to your petitioner's knowledge that the offices so to be created had been offered to another member of the Bar, who was your petitioner's informant, and who, after considering the matter, had declined, for reasons personal to himself, to accept them. 16. After this a considerable time elapsed before your petitioner heard anything more about the matter. At some time towards the end of February your petitioner received a message from the Hon. the Premier requesting your petitioner to call upon him at his office ; and, upon your petitioner doing so, the Hon. the Premier offered to your petitioner the offices of a Commissioner under " The Native Land Court Acts Amendment Act, 1889," and of a Judge of the Supreme Court of New Zealand, and your petitioner accepted the same offices. 17. On or about the Ist day of March, 1890, your petitioner received from the Hon. the Premier a letter in the words and figures following: — « Sic,— " Wellington, Ist March, 1890. " In reference to the conversation I had with you on the subject of the appointment of a Commissioner, under section 20 of 'The Native Land Court Acts Amendment Act, 1889,' I have now the honour to inform you that His Excellency the Governor has been pleased to approve of your appointment to that office. It has appeared to the Government, and such appears to be the general feeling, that, for an office of such importance involving such large interests, the Commissioner should have the status of a Judge of the Supreme Court, and therefore you will be appointed to that office also. " As you are aware, the demands on the time of the present Judges of the Supreme Court cause inconvenient, but unavoidable, delay in the despatch of business, and the leave of absence granted to Mr. Justice Eichmond will aggravate the evil unless some provision is now made to meet it. The Government is averse to the appointment of a temporary Judge if it can be avoided, and they hope that the arrangement by which you will afford occasional assistance in the Supreme Court work will temporarily meet the requirements. " Your salary will be £1,500 per annum, the same as the present Puisne Judges. " Your Commissions to the above offices will be at once forwarded to you. " I have, &c, " W. B. Edwards, Esq., Wellington." " H. A. Atkinson. 18. On the sth day of March, 1890, your petitioner wrote and sent to the Hon. the Premier a letter in the words and figures following : — « Sic,— " Wellington, sth March, 1890. " I have the honour to acknowledge the receipt of your letter of the Ist March, and to say that I accept the appointment therein named upon the terms therein mentioned. " I have, &c, " The Hon. the Premier, Wellington." " W. B. Edwaeds. 19. On the 27th day of February, 1890, your petitioner was by an Order in Council appointed a Commissioner under "The Native Land Court Acts Amendment Act, 1889," and on the 2nd day of March, 1890, His Excellency the Governor, by and with the advice of his Eesponsible Advisers for the time being, caused to be issued under the Seal of the Colony of New Zealand a Commission in due form of law whereby your petitioner was created a Puisne Judge of the Supreme Court of New Zealand. 20. The said Order in Council and Commission were forwarded to your petitioner on the 6th day of March, 1890. 21. Prior to the acceptance by your petitioner of the said offices, your petitioner had been informed that his Honour the Chief Justice had been consulted by the Hon. the Premier as to the appointment of your petitioner as a Judge of the Supreme Court of New Zealand, and had. approved of the same, and your petitioner believed that his Honour the Chief Justice had been fully informed as to the whole of the details in connection with your petitioner's said appointment. 22. Your petitioner was at the time of the said appointments destitute of any political influence, and your petitioner accepted the same under the circumstances hereinbefore set out, and in good faith, believing that the same were made in the public interest by his Excellency the Governor by the advice of the Eesponsible Advisers of the Crown, and with the approval of his Honour the Chief Justice, and believing also that the power of his Excellency the Governor to make the said appointments was clear and unquestionable. 23. In consequence of your petitioner's acceptance of the said appointments at such short notice, your petitioner was compelled to dispose of his practice immediately for what he could get, and he received from the sale thereof the sum of £500, and no more, and upon the said sale your petitioner entered into the usual covenant with the purchasers of his said practice, not at any time thereafter to practice in the City of Wellington, or within fifty miles thereof. 24. Shortly after the said Order in Council and Commission were forwarded to your petitioner, your petitioner was informed by the Hon. the Premier that his Honour the Chief Justice expressed doubts as to the validity of your petitioner's appointment as a Judge of the Supreme Court of New Zealand, whereas your petitioner was greatly surprised. 25. Your petitioner was subsequently informed by the Hon. the Premier that some interviews and correspondence had taken place between the Hon. the Premier and his Honour the Chief Justice with reference to the matter, but your petitioner was not party to these interviews or correspondence, save that when ultimately the Hon. the Premier informed your petitioner that his

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Honour the Chief Justice had agreed to administer the oaths to your petitioner upon the understanding that your petitioner would not perform any judicial act as a Supreme Court Judge until after the meeting of the next session of Parliament, your petitioner assented to that arrangement. 26. Subsequently, on the 14th day of March, 1890, your petitioner took the oaths of office as a Judge of the Supreme Court of New Zealand before his Honour the Chief Justice, and then for the first time saw him in relation to the matter. 27. -Pursuant to the arrangement so come to between the Hon. the Premier and his Honour the Chief Justice, your petitioner did not perform any judicial act as a Judge of the Supreme Court of New Zealand until he was requested so to do by his Honour the Chief Justice in pursuance of an arrangement made between his Honour the Chief Justice and the Eesponsible Advisers of the Crown. 28. This arrangement was come to between his Honour the Chief Justice and the Government during your petitioner's absence from Wellington, and was communicated to your petitioner by his Honour the Chief Justice by telegraph to Napier on the 14th day of June, 1890. The following is a true copy of the said telegram :— " His Honour Mr. Justice Edwards, Napier.—l have seen Attorney-General. The view taken is that you do not refrain from acting at once. Measure validating all previous appointments proposed. Conolly, if he will, to take all Napier 21st July. If you at liberty to take Nelson and Blenheim, to do so; if not, then either I or Conolly. If I go I should adjourn Wellington nonjury cases. Nelson is 3rd July. If inconvenient to Conolly and to you, I will take. Government do not wish arrange beyond the present difficulty with you, to be at liberty for Commission as soon as possible. Will you arrange with Conolly, and let me know about Nelson ? "J. Peendeegast, C.J." 29. After receipt of this telegram your petitioner believed that any doubts theretofore entertained by his Honour the Chief Justice as to the validity of your petitioner's commission as a •Judge of the Supreme Court of New Zealand had been then set at rest. 30. In consequence of the said request of his Honour the Chief Justice, and of the arrangement so come to between his Honour the Chief Justice and the Government of the colony, your petitioner entered upon the exercise of his functions as a Judge of the Supreme Court of New Zealand before any reasonable time had elapsed to enable the Government of the Colony of New Zealand to request Parliament to make permanent provision for payment of your petitioner's salary, but not before the meeting of Parliament. The meeting of the session of Parliament in 1890 was on the 11th day of June, and your petitioner first exercised judicial functions on the 2nd day of July, 1890, at Nelson. 31. The provisions of "The Native Land Court Acts Amendment Act, 1889," proved to be insufficient for the purposes for which the same were intended. Your petitioner carefully considered the enactment in question before any practical experience had been had of the working thereof, and on the 14th day of May, 1890, your petitioner addressed to the Hon. the Native Minister a letter fully pointing out the defective nature of the said enactment. Afterwards, on the 21st day of August, 1890, your petitioner drafted and sent to the Under-Secretary for the Native Department a Bill containing the provisions necessary to render the provisions of " The Native Land Court Acts Amendment Act, 1889," intelligible and workable. The correspondence upon this subject, and the said draft Bill, appear upon pages 48 to 54, both inclusive, of the Parliamentary Paper H.-13, presented to the present session of Parliament. 32. Nothing, however, was done by the session of Parliament of 1890 towards rendering the legislation of the session of 1889 workable, and in consequence thereof there was not, until shortly before the expiration of the time allowed by " The Native Land Court Acts Amendment Act, 1889," for making claims before the said Commission, being the 20th day of September, 1890, any work for your petitioner to perform as Commissioner, after the hearing of the first two cases in the month of June, 1890. 33. Immediately prior to the said 20th day of September, 1890, some twenty-three separate applications were made in respect of twenty-three separate blocks, but owing to the time required for service of the notices required by the rules made by the said Commissioners, none of the said applications could properly be heard before, at earliest, the middle of the following month of December, and the applications in respect of twenty-one of the said blocks were accordingly gazetted for hearing on the 16th day of December, 1890. 34. The services of your petitioner were, however, in the meantime urgently required for the performance of the judicial work at Wellington, Nelson, and Blenheim, and in the Court of Appeal, and your petitioner was from the said 3rd day of July, until leaving for Gisborne on the 13th day of December, 1890, in order to proceed with the work of the said Commission, continuously occupied in the work of the Supreme Court. 35. The long vacation of the Supreme Court began on the 20th day of December, 1890, and came to an end on the 31st day of January, 1891. Your petitioner devoted the whole of this time to the work of the said Commission. 36. Your petitioner returned to Wellington on the 10th day of February, 1891, and from that time until the end of April your petitioner was occupied with judicial work at Wellington, Napier, and Wanganui. 37. On the 14th day of March, 1891, your petitioner was informed by letter from the Hon. the Premier that, as provision had not been made by Parliament for the expenses of the Commissioners after 31st March, the Government had decided to bring its labours to a close, and that His Excellency the Governor in Council had been advised to revoke the Commission from that date. 38. At this time there were "pending a considerable number of applications, fourteen of which had been heard and were, at the request of the parties, standing over for judgment, in order that it might be ascertained whether the Legislature would" authorise the Commissioners to remove certain formal defects mentioned in the report of the Commissioners on the Gisborne sitting, and some five

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of which at the like request and for the like reason had been adjourned for hearing. There were also one or two applications for hearing for which no elate had then been fixed. Further, it was probable that a large number of additional applications would be lodged before the 20th day of March, when the time for receiving applications would expire. Your petitioner informed the Hon. the Premier of these facts by letter on the 16th March, 1891. 39. The letters referred to in paragraphs 37 and 38 appear upon page 29 of the said Parliamentary Paper H.-13, and the report on the Gisborne sitting appears on pages 59 to 67, both inclusive, of the same parliamentary paper. _ _ 40. Before the 20th day of March, 1891, when the time fixed for receiving applications expired, twenty-two additional applications were lodged with the Commissioners, and the sum of £220 was paid as fees on lodging the same. . 41. Nevertheless your petitioner was, by Order in Council, removed from his said office ot Commissioner as from the 31st day of March last. 42. In the Bill relating to Native lands laid before the present session of Parliament, the defects in the existing legislation, to which your petitioner has called attention and which have precluded that legislation from being effective, have been recognised, and clauses have been inserted which are designed to remedy the same, but by the same Bill it is proposed to transfer the powers given by the Act of 1889 to the Commissioners to be appointed under that Act to the Native Land I if"YIl Vi 43. On the 6th day of May, 1891, the Hon. the Attorney-General commenced proceedings against'your petitioner in the Supreme Court of New Zealand, Wellington District, with a view to ousting your petitioner from his office of a Judge of the Supreme Court of New Zealand. These proceedings were not commenced until after the sitting of the Court of Appeal had begun for several days, and in consequence thereof it would not have been possible, but for the concurrence and active assistance of your petitioner, to have brought the said proceedings to a hearing before the Court of Appeal until the month of November next. 44. Your petitioner, however, instructed his solicitors and counsel m every way to facilitate the said proceedings, and in consequence thereof the same proceedings were heard before the Court of Appeal on the 18th, 19th, and 20th days of May last, and on the 27th day of May last the Judges of the Court of Appeal delivered judgment in the said matter, whereby the validity of your petitioner's Commission was upheld by a majority of the said Court. 45. On the 29th day of June last the Crown Solicitor informed your petitioner s solicitors that he was'instructed to appeal to the Privy Council against the said judgment of the Court of Appeal, and that he had instructed his agents to retain Sir Horace Davey and Mr. Fmdlay, Q.C., to argue the case before the Privy Council. 46. On the 4th day of July last the Crown Solicitor informed your petitioner s solicitors that he had lodged the cases on appeal for transmission to the Privy Council. 47. Your petitioner, through his solicitors, have applied to the Government, through the Crown Solicitor, to make provision for his costs of the said appeal to the Privy Council, and for payment of his salary, or of some sum equal to his salary, whether by that name or not, pending the appeal, and also to grant to your petitioner leave of absence pending the appeal, and your petitioner has undertaken that neither the payment of your petitioner's salary nor the granting of leave of absence to your petitioner shall involve any recognition on the part of the Government of the validity of your petitioner's Commission, and your petitioner has offered to sign any formal undertaking to that effect which may be deemed advisable. 48. The Government have, through the Crown Solicitor, declined to accede to any of these 49. Unless leave of absence is granted to your petitioner it will be necessary, for the preservation of his rights, that he should resume the exercise of his judicial functions, and he will have no alternative but to do so. _,„■,_-, * v „ i * 50. Your petitioner's salary has not been paid since the 31st day of March last. 51. Your petitioner is unable, by reason of his judicial position, to devote himself to any profitable pursuit during the pendency of the said appeal, and your petitioner is not possessed of private means sufficient to enable him to defray the enormous cost of the proceedings which have been instituted against him, nor to live without salary for the lengthened period which must elapse before judgment in the matter of the said appeal can be obtained in the Privy Council. 52. The sole question which is raised in the said proceedings is the meaning of the fifth section of " The Supreme Court Act, 1882," and there is in the said proceedings no charge whatever against 53. The same interpretation which was placed by the Government which advised the appointment of your petitioner upon the statute was placed by prior Governments upon the same words in the prior statute, and it is admitted by the Judges of the Court of Appeal, by the Hon. the Attorney-General, and by his counsel Sir Eobert Stout, that if your petitioner's appointment is invalid then the appointments of Mr. Justice Richmond in 1862, of Mr. Justice Chapman in 1863, and Mr Justice Gillies and Mr. Justice Williams in 1875, were also invalid at the time of their being made, and until the passing of " The Supreme Court Act, 1882," which, it is said, has validated these appointments, though it is not pretended that any validation was intended. 54. Your petitioner therefore submits — (a.) That the selection of your petitioner for the office originally offered to him was entirely unsolicited by your petitioner. (&.) That the offices conferred upon your petitioner were only conferred upon him after a protracted negotiation with the late Ministry, and then only after the same offices had first been offered to and had been declined by another member of the Bar. (c.) That the appointment of your petitioner- as a Judge of the Supreme Court of New Zealand was in strict conformity with every precedent in the colony. 2—J. 1.

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(d.) That your petitioner was informed and believed that his Honour the Chief Justice had been consulted as to, and had approved of, your petitioner's appointment as a Judge of the Supreme Court of New Zealand. (c.) That your petitioner entered upon the duties of a Judge of the Supreme Court of New Zealand prior to the consideration of his position by Parliament at the express request of his Honour the Chief Justice, and also of the Ministry for the time being in office, and that your petitioner continued to discharge such duties until the commencement of the aforesaid proceedings against him. (/•) That .your petitioner has in every way in his power urged the necessity of amending the powers given by " The Native Land Court Acts Amendment Act, 1889," so as to render the same effective. (g.) That, if the same powers had been so amended, there would have been ample work of the character to perform which your petitioner was specially appointed to occupy the whole of his time. (/i.) That the necessity for amending the same powers is recognised in the Bill relating to Native lands now under the consideration of Parliament. (..) That if for motives of policy it is deemed expedient by Parliament to confer the said extended powers upon another tribunal, it is not just that your petitioner should suffer from such alteration in policy. (j.) That, unless provision is made for payment out of the public funds of your petitioner's costs of the said appeal to the Privy Council, it is impossible that the points of law therein raised can be properly argued or satisfactorily determined. (k.) That during the pendency of the said appeal it is not possible for your petitioner to occupy himself in any profitable pursuit, and that if provision is not made for payment of your petitioner's salary during such pendency your petitioner will be placed in grave difficulty, and may probably be compelled to resign his office. (I.) That unless during the pendency of the said appeal leave of absence is granted to your petitioner, your petitioner will be compelled to continue the exercise of his judicial functions. (to.) That your petitioner has given up a large and lucrative practice, built up during a period of nearly fourteen years, and has debarred himself from again engaging therein in order to accept high office under the Crown, and that the public faith of the_ colony requires that the contract entered into by the late Ministry with your petitioner should be strictly adhered to. 55. Wherefore your petitioner prays that right may be done to him, and that he may have such relief as to your Honourable House may seem meet. And your petitioner will ever pray, &c. W. B. Edwaeds.

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