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The Pamphlet Collection of Sir Robert Stout: Volume 19

An address to the people of Otago

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An Address to the People of Otago.

Dunedin Mills, Dick,—co, Printers, Stafford-Street.

MDCCCLXVII.
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To the People of Otago.

As I feel, on a second attempt, that I can neither serve you, nor myself, by settling here, I will briefly pass in review the state of things which I should have to wage war against, if I remained, and in a contest against which I could not hope, with such aid as I could expect from you, who allow it, to meet with anything but defeat. I entreat your indulgence to the plainness and homeliness of my style.

The following correspondence will be a convenient introduction to what follows :—

[Copy.]

"Dunedin,

"The Otago Daily Times and Witness (Limited), ats Cameron.

"Dear Sir,—To emancipate you from the difficulty in which you are placed by your client's stipulating with you that Mr.——shall lead in this case, I hasten to return you my retainer and fee."—Yours truly,

"Thomas Parsons.

"To—, Esq., Solicitor, Dunedin."

[Extract.]

"Dunedin,

"My dear Sir,—I send you on the other side a copy of a note which will inform you of the unpleasant predicament in which I have been placed. Will you kindly say whether I can accept a retainer, or offer my services gratuitously to the other side? There is nothing in the case to make Lord Eldon's remarks in Earl Cholmondeley v. Lord Clinton, 19 Vesey 274, apply. Can we do nothing to form a bar, proper, here? With a limited liability press; and limited liability churches, limited liability kirks, and limited liability synagogues imminent, what is to become of our descendants?—Yours faithfully,

"Thomas Parsons.

"The Honorable James Prendergast, Attorney-General, Wellington, N.Z."

[Copy.]

"To the Editor of the 'Otago Daily Times.'

"Sir,—I enclose copies of my correspondence with your solicitor and the Attorney-General, respecting the matter in which I have returned your Company's retainer and fee; and shall esteem it a favor if you will publish it, or hand it to a contemporary to do so, lest tittle-tattle place me in a more humiliating position than required. I trust our grandchildren will discover that the empire of reason does not lie exclusively in words. It will not be my page 4 fault if I do not rout your 'loves' the demurrers, and introduce brevity and simplicity. I omit names.—Yours,—c.,

"Thomas Parsons.

[Copy.]

"The Otago Daily Times and Witness Company, Limited.

"Sir,—I enclose a copy of my letter to the Editor of the Daily Times, 'asking him to allow me, through his columns, to explain the course I took to prevent his Company from invading bar etiquette. I also enclose copies of the correspondence referred to in the letter to him. He has not published them, and I now solicit of you the favor I sought of him in vain. The etiquette of the bar is the servant of the public, as will be understood if we ever acquire a proper bar here.—Yours,—c.,

"Thomas Parsons.

Neither of the newspapers complied with my request to publish. The non-compliance of the 'Star' was not, perhaps, unreasonable. It is not, however, my humiliation, but yours, that your bar has men to accept the superseding retainer.

Were an English solicitor—who had been convicted of a grave offence in England and who would expose himself to a very heavy punishment if he attempted to practice as a solicitor there—to come here to-morrow, he would be entitled to be admitted as a barrister, without any inquiry into the truth of his imputation, if he only imputed to the counsel who conducted the prosecution against him and the judge who tried him there, conduct unworthy of their positions. I mean no reflection on anybody. It is the fault of all of you, and not of those I seemingly reflect on only, that such a state of things exists. It has become the genius loci.

As respects the case of Cameron against the 'Daily Times' newspaper, the case of Cox v. Feeney (so much commented on by Mr. Justice Chapman during the argument and in his judgment, and which his researches had failed to find and which was so new to him) was of my finding; and is that on which (as will appear from my opinion of the 16th July last) I advised the newspaper's defence. Neither the learned judge nor the newspaper's counsel, however, seem to have discovered, since neither of them referred to it, the banco cases of Kelly v. Tinling, 1 Law Reports, Q.B., 699, found by me after advising, in which Lord Chief Justice Cockburn's nisi prius views were supported by the whole court; just as, in the late case of another action against the same newspaper by some bank before I came here, and in which a verdict for £500 damages was obtained against the newspaper, three nisi prius decisions of Chief Justice Cockburn in favor of the defendants, which had been several years in the regular reports, were wholly overlooked.

Take, as another type of the state of things here, the recent privilege cases—Robinson v. Reynolds, Every v. Same. More simple cases never occupied the attention of a judge. No personal injustice has, however, been caused by the decision, as the warrant of commitment was, beyond question, bad. The only thing to be lamented is the loss of a fine opportunity of expounding the constitutional canons that govern in a community like this.

The learned judge (Mr. Justice Chapman), after stating part of the 53rd section of the Constitution Act (20 and 21 Vic., c. 53) thus:—"It shall be competent for the General Assembly" (the Governor, Legislative Council and House of Representatives) "except and subject as hereinafter mentioned to make laws for the peace, order and good government of New Zealand," added, after some intervening remarks," I am of opinion that it is not competent to any court of the colony to entertain the question whether an Act of the General Assembly is or not for the peace, order, and good government of page 5 the colony—of that the General Assembly is the sole judge. Indeed, the words only constitute the common form of expression by which a general power to make laws is conferred." It is difficult to conceive how so much error could be crowded into so small a space as this latter sentence. The words used where a general power to make laws is intended to be conferred, are those of the Constitution Statute of the Colony of Victoria (18 and 19 Vic., c. 55, Schedule 1, section 1, Adamson Vol. 2, p. 1517) and like acts, "to make laws in and for Victoria in all cases whatsoever." The power created by the 53rd section of the Constitution Act of New Zealand is a limited power, giving to and imposing on the judicial tribunals of the colony the right and duty of seeing that all colonial legislation under it is, not only for the peace, order, and good government of the colony, but that (where it is within the exception) it is passed in the mode prescribed for such exceptional legislation. The privilege case was a mere question of the construction of an Act of Parliament (the Constitution Act). The section (52) immediately preceding the 53rd, referred to by the learned Judge, provides that no standing order or rule adopted by either the Legislative Council or House of Representatives (though approved by the Governor and allowed by Her Majesty in the same manner as Acts of the General Assembly) shall be of force" to subject any person not being a member or officer of the Council or House to which it relates, to any pain, penalty, or forfeiture, "and the enactments succeeding the 53rd section (containing those referred to in the exception in such 53rd section) provide that any Bill for the alteration of any of the provisions of the Act (the Constitution Act)" shall be reserved for the signification of Her Majesty's pleasure thereon." The "Privileges Act, 1856" was not so reserved, and, this defect not being cured, but on the contrary being corroborated by the provisions of the Imperial Act 28 and 29 Vic. 63, the solo question was whether such Privileges Act did not (having regard to such 52nd and 53rd and the 19th and 24th sections of the Constitution Act) in attempting to confer on Provincial Councils the power of subjecting persons, not members or officers of the Legislative Council or House of Representatives, to pains, penalties, and forfeitures (its penal enactments are numerous and severe, besides those under consideration), attempt to alter a provision or provisions of the Constitution Act without pursuing the form prescribed by such Act for accomplishing such alteration. Instead of examining and disposing of this question, which would have been a real service to the colony, the learned Judge, though the matter was twice pressed on his attention during the arguments, passed it over entirely unnoticed. There is no English authority for the learned Judge's position that the courts of the colony are not competent to entertain the question whether an Act of the General Assembly is or not for the peace, order, and good government of the colony; but there is much English authority against such position, and the effect of the learned Judge having abdicated his function of seeing that the legislation of the General Assembly is as required not only for the peace, order, and good government of the colony, but not contrary to the exceptions and restrictions imposed on it, may be to occasion much litigation and trouble hereafter. I submit that it is the bounden duty of the tribunals of the colony not only to see that colonial legislation is proper, but to annul what is improper. It is easy to give away people's liberties, but difficult to get them back again. I submit that the General Assembly is not the judge of its own power, and that nothing can be more idle than to assert that it is so. Where a statutory power is given to one body to make laws for the peace, order, and good government of a colony, and to another body to administer such laws, the right and duty are necessarily given to and imposed on such second body to see that no law calculated to cause it rife, disorder, or ill government in the colony is permitted to prevail. The people of this colony are entitled to the full benefit of the English common law, and of all English statute law, existing at the foundation of the colony (so far as such statute law is applicable to the colony, and has not been since legally altered by proper colonial legislation), and of all laws properly made by the colony, subject only to all proper colonial legislation hereafter to take place under the limited power of page 6 legislation possessed by the colony and subject to the unlimited power of legislation vested in the Imperial Legislature; but this colony is not subject to two supreme legislative authorities—the Imperial and a colonial. We fortunately have not, at present, a supreme colonial legislature, and cannot therefore go straight to destruction. The learned Judge has, unintentionally no doubt, done injustice to the learned Sir F. Dwarris, where he (the learned Judge) says "even Sir F. Dwarris, who has diligently collected these dicta," (some views previously noticed by that learned author in reference to English Acts of Parliament against natural justice) "concludes by stating that the general and received doctrine certainly is that an Act of Parliament of which the terms are explicit and the meaning plain cannot be questioned or its authority controlled by any court of justice." It will be found that the learned Dwarris does not "conclude" with the doctrine adverted to. He only notices it (p. 484), and that, seemingly, reprehendingly, for he modifies it by adding (immediately following the words quoted by the learned Judge), "Yet Sir Edward Coke manfully if not convincingly defended his opinion" (to the contrary of such doctrine), "and successfully contended that the case" (one against natural justice) "must be correctly interpreted to be exempted out of the provisions of the statute; that a contrary construction could not be within the meaning of the act. The law therefore was—to be properly construed—not to apply to such cases; but the law itself was not to be held void." From which addition it is pretty clear that the learned writer thought, as every reasonable man thinks, that, even as respects Imperial legislation, "the law itself" (that is, any law against natural justice) "will be held to be void," whenever Cokes enough to achieve the task shall arise. None of the balderdash and affectation of learning imported into the "privilege" cases had, however, anything to do with them. The law applicable in construing such Acts of Parliament as the Constitution Act of New Zealand, is the same as that applicable in construing an act conferring partial legislative powers for draining the Lincolnshire fens, or the like: constitutional doctrines have nothing whatever to do with it There is not the very slightest analogy between the Imperial Legislature (which is the unbounded sovereignty of the State, embodied in the English Common Law,) and the Legislature created by Imperial legislation, conferring on a colony the limited power to make laws for the peace, order, and good government of the colony, like the Constitution Act. The power of the Imperial Legislature is the boundless power of English Common Law; whereas that of the Colonial Legislature is only such as can be found in the terms creating it, as indirectly shown by numerous English authorities, and amongst them, Keilly v. Carson, Fenton v. Hampton, and Doyle v. Falconer, before the Lords of the Judicial Committee of the Privy Council. No instance has arisen (which is much to be regretted) in which the English Courts have been called on to adjudicate expressly, particularly, and directly on the question; but the necessities of the United States of America have called for adjudication on the subject in that country; and there can be no doubt that their doctrine is the true and correct one. Dwarris states it, in the paragraph of his work immediately following that quoted by the learned Judge (Mr. Justice Chapman), thus: "There" (in the United States) "they hold that as there is a written Constitution designating the powers and duties of the Legislature ". ." an act of the Legislature may be void as being against the Constitution. The judicial department, say they, is the proper power in the Government to determine whether a statute be or not constitutional. The interpretation or construction of the Constitution is as much a judicial Act, and requires the exercise of the same legal discretion as the interpretation or construction of a law. To contend that the courts of justice must obey the requisitions of an Act of the Legislature when it appears to them to have been passed in violation of the constitution, would be to contend that the law was superior to the Constitution, and that the judges had no right to look into the latter, and to regard it as the paramount law. It has accordingly become a settled principle in the legal policy of the United States that it belongs to the judicial power, as a matter of right and of duty, to page 7 declare every Act of the Legislature made in violation of the Constitution, or any provision of it, null and void."

I submit that it is, in like manner, a matter of right and duty on the part of the judicial power of this colony to declare every Act of the Legislature of this colony made in violition of the Constitution Acts, or any provision of them, null and void; and to see that the lawful rights of the people of this colony are no further restricted than by the English Common Law, Imperial legislation applying to the colony, and the laws of the colony made properly and within the power conferred on the Legislature by the Constitution Acts.

I now pass to a more ordinary matter—that of the general character of your administration of justice and conduct of affairs connected therewith, both public and private, and will take as the first typo in this matter the case of Chalmers v. Stafford. ('Daily Times,' June 15). There was no question for a jury in that case. The jury and witnesses were all unnecessarily brought from their homes and businesses; no question of fact but only one of law—namely, that of the construction of the agreement, arose in the case. The firm who penned the contract (letter) for the vendor (Stafford), were far better lawyers and men of business than the learned judge, the jury, or lawyers concerned. If the learned judge had turned to that letter, (the contents of which were, or ought to have been before him), he would have discovered that the agreement between Stafford and Roberts, conferring on the former the power to sell the half of the station and the sheep was referred to in the letter, and thereby, by an elementary principle of English law, constructively incorporated in it; and consequently, Chalmers having constructive notice of such agreement, could only require under his contract with Stafford, what the latter was entitled to under his with Roberts.

I will next take, as another type, Davies v. Connor ('Daily Times,' 14th August). Here, Mr. Justice Richmond after an elaborate enquiry into transactions of the late partnership between the plaintiff and defendant, had found a balance due from the former to the latter, instead of due to the former as claimed by him, and the report of the Registrar, in accordance with that Judge's finding, had been completed and was filed on the 27th June, and the plaintiff's solicitor who was also plaintiff's barrister, did not give notice of his motion to vary it until the 23rd July. By Act of Parliament the rule in such case (249) is that, "When any certificate or report of the Registrar shall have been signed, and adopted by the judge, the same shall be filed in the office of the court, and shall henceforth be binding on all the parties to the proceedings, unless discharged or varied in open court upon motion within one calendar month." A "motion" or "upon motion" is only one operation, and like every other operation, comprises its beginning, its end, and all its parts, and the plaintiff having wasted 26 days of the allowed month before he gave his notice of motion to vary the certificate or report, and the month having ended before the motion was ended, the mover ought to have been held to have been out of court, but Mr. Justice Chapman, upon some principle which I cannot comprehend, but which appears to me to have a strong enmity to logic and justice, held otherwise, and seemed to think that where the plaintiff's solicitor is also the plaintiff's barrister, he may, as the former, give notice that he is going to do something which, as the latter, he is not ready to do; and thus, having delayed for 26 days as the former, to give the notice of motion, he may, as not being prepared, as the latter, to make it, indefinitely defer making it, and begin it nearly three weeks after the time at which it ought to have been ended. I have been for nearly 50 years such an dolator of Justice, that she has commissioned me to say that this decision is against her canons, and to add that semper parata is her motto.

I would take Donkin v. Taine as another type; France v. Suisted (I mean what has been done in it up to this time—its institution and course of prosecution) as another type, and pass in review several other types which have presented themselves during my short sojourn here, but that the task is repulsive and that those I have given ought to be enough to lead to amendment.

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Were I to present you, in the transaction of your legal matters out of court, the picture would be still darker.

The main acquaintance you have with justice is the cost of law, against which state of things, in such a community, I could not hope to struggle successfully single-handedly, and therefore (and I think you will have no just ground to call me coward) I run away the second time. I am only a mere lawyer—indeed only a chamber counsel—incapable of making a long speech about nothing—in fact, incapable of making one at all. Truth and justice reside in brevity, but Beelzebub is no friend to brevity, and would, against any power I could supply, overwhelm truth and justice in spume and noise.

I pen this in the service of your children, as I did not like to run away again without a word. If you had not sunk quite so low, I could have served you.

Unfortunately I have to encounter little better in returning to Victoria, and even if the state of my health permitted (which it does not) of my returning to the English bar (where I made a good income) I should not be able, notwithstanding the esteem I left behind me on quitting it, to get back my practice, against the aversion there entertained (and I am inclined to think justly) to immigrants from colonial bars.

I decline place, and I decline foulness. Nothing remains but to compound with destitution. The contest with Satan has become too wearisome, and, what is worse, beyond my dilapidated faculties. He is getting me under. His arms grow longer, mine shorter. I have no longer health or strength to give him one from the shoulder at every turn, and he increases the turns, and I am vanquished.

Yours faithfully,

Thomas Parsons.

Dunedin,

Mills, Dick—Co., Printers, Stafford Street, Dunedin.