The Gisborne Standard AND COOK COUNTY GAZETTE. PUBLISHED EVERY TUESDAY, THURSDAY, SATURDAY MORNING. Saturday, March 22, 1890. THE NEW JUDGE.

Gisborne Standard and Cook County Gazette, Volume III, Issue 432, 22 March 1890, Page 2

The Gisborne Standard AND COOK COUNTY GAZETTE. PUBLISHED EVERY TUESDAY, THURSDAY, SATURDAY MORNING.

Saturday, March 22, 1890. THE NEW JUDGE.

Be just and fear not; Let all the ends thou aim’st at be thy country's. Thy God's, and truth's.

The appointment of Mr Edwards is being made the subject of a great controversy, and much legal knowledge has been adduced on both sides, The able Wellington correspondent of the N.Z. Herald puts the dispute in the clearest light in which we have yet scan it summed up

and we may quote in full , the telegram which appeared in Tuesday’s Herald :— Evidently the appointment of Mr W. B. Edwards is being made the occasion of a party skirmish in advance. Sir Robert Stout has been interviewed by a reporter of the Post, and he pronounces the appoint ment “illegal,” “unconstitutional,” and “ destructive of the independence and dignity of the Supreme Court bench.” Upon the first point Sir Robert says that tbo judges have their irremovability and independence secured by what is equivalent to a statute—an address from both Houses of Parliament and the Queen's assent. Their pay is provided by the permanent civil list. “If you will refer to writers on con stitutional history, such as Hallam, or May, or others, you will find this stated, if I remember right. Hallam says this was secured by the Act of Settlement, while May attributes the putting on the civil list to George the Third’s reign. I have not their books tc refer to, but that is my recollection.” “In New Zealand our judges have been put in the same position as those of England. We have a Civil List Act which provides, without a vote of Parliament, for the pay of five judges. There is no provision for a sixth judge ; Mr Edwards is therefore left without what constitutional writers consider one of the essentials of independence, a salary permanently appropriated. Ido not believe it was ever contemplated that any judge should be placed in such a position ; on the contrary, the Legislature has been so careful of the independence of the judges that even a temporary jud.'e does not require to go to Parliament to fix bis salary, the Governor does it. I know it has been said that Section 5 of the Supreme Court Act gives the Governor power to appoint any number of judges. If that section were read by itself it might appear so, but even the provision in that section shows that only five were meant. But that section cannot be read alone. The rule is that all the legislation referring to the subject must be construed together so that the 2nd section of the Civil List Act must be read with section 5 as well as sections 11 and 12 of the Supreme Court Act.”

lam informed that the whole of the law bearing on this subject has been very carefully considered, and that tbe power of the Governor to make the appointment is beyond all question. The highest legal opinion in the colony has been obtained. The fact that Mr Edwards was sworn in by the Chief Justice, appears to confirm this view. I have heard that the judges of the Supreme Court acquiesce in the legality of the appointment.

Upon the point that tbe appointment in this instance was “ unconstitutional,” Sir Robert Stout says:—“lt is clearly unconstitutional. It is against, at all events, the spirit of our laws and against English precedent. Since tho judges were rendered inde pendent, Parliament has a right to be consulted before any Ministry appoint such a high officer as a Supreme Couit judge. Up to the present it has been considered five judges are sufficient; the Ministry think six are required. If we require six let the Parliament decide.” But the answer of the Government to both the arguments of Sir Robert Stout is that Parliament will be asked to vote the salary; and, if it consents to do that, there will be assent to the appointment. On the third point Sir Robert Stout says “To have a Judge without a salary is bad enough, but to have one who is a civil servant, controlled by the Executive, and dependent upon it and its majority in Parliament for his salary, is worse.” I have been at some pains to collect as much legal opinion as possible on the whole of this subject. An eminent, lawyer here assures me that there is undoubted power in the Governor to make the appointment. It that be so, and Parliament acquiesces in the occasion of the appointment, the provision for the salary will be made by Parliament or it will not. If the salary is voted there is no farther room for question ; if they refuse it the matter is also ended. Whether Parliament decides is within its function to do before or after tbe appointment is a secondary question. Whether there shall ba five judges or more is a question for Parliament; but Parliament never takes tbe initiative, in saying whether an additional judge is wanted; that devolves upon the Executive Government, of which His Excellency is the highest officer. It the Government recommend each an appointment His Excellency appoints, and the Parliament provides the salary. This, lam told, is the A.B.C. of the whole business. It is not easy to see what occasion there is for tbe great fuss that is being made over thin affair. Some people say it is a retaliation on account of the Ward-Hislop-Fergus business. It certainly is raising a very acrimonious discussion. It wonld appear to most people that whether there should be five judges or ten judges on the civil list is a matter for the decision of Parliament alone. The matter is also greatly

obscured by being overlaid with purely technical considerations. The Government appears to be confident that they have the law on their side. It is scarcely possible to suppose they would have the support of the legal profession, and the acquiescence of the Supreme Court for an appointment that was “ illegal ” “ unconstitutional,” and “ destructive of the dignity and independence of the Supreme Court Bench.” It may be fairly judged from the above that though so much noise has been made over the Judgeship there is really nothing in the affair, and it is a great pity there should be any attempt to make political capital out of an appointment which should be considered strictly on its merits. One remarkable point in the controversy is the way in which eminent lawyers are giving their opinions, in a professional sens?, without charging a professional fee.