The Dominion. TUESDAY, MAY 28, 1912. LAW AND REALITY.

Dominion, Volume 5, Issue 1451, 28 May 1912, Page 4

The Dominion. TUESDAY, MAY 28, 1912. LAW AND REALITY.

There is one aspect of the appeal decision upon the case Dehpsey v. Furness—to which we referred briefly in yesterday's issue—that deserves some special notice. So far as , the law of the case is involved, it is so clear and simple that it would be a waste of space, and a tiresome elaboration of the obvious, to do more than express one's satisfaction that the Appeal Court so easily found the Defence Act to be proof against shipwreck on a flimsy little bit of special argument. What really does deserve some comment is the way in which the Appeal Court's decision contributes to the proof of a very important fact that we dealt with the other day in a reference to some English High Court decisions, namely, the fact that British law, administered by Courts faithful to the British tradition, is the most sanely progressive and living, institution in the world. Not a fossil deposit that must be dug into and carefully removed every little while in order to make room for the expansion of social progress, but a living soil that will bear a harvest to any genuine seed. When, in our comment on April 3 upon tlio original magisterial decision, we gave, as the opinion of "the logically-minded- layman," the opinion that is actually held by the Supreme Court, the counsel for the defendant Furness, in a letter we printed on April 16, attacked our position rather sharply; and we have no doubt that at the time he felt, and a good many other people felt with him, that for all their general soundness the Defence Acts would require amendment in order to pase the ordeal of the Courts. The Appeal Court, as we have seen, was able to find, out of luo resources of our judicial system, a complete defence for the Act on the point that had been challenged.

What aro "the resources of our judicial system"! Examination of the judgments of Judges Cooper and Chapman will show that these resources consist in the continued correlation of judicial interpretation with the real legislative intention, even when that intention can only be implied. Most people, will lie able to remember cases in which Judges have withdrawn themselves into such a rigid interpretation of this written statute as to give decisions materially damaging to the statute involved. In most of such cases the Judges have merely been recognising, either a gross fault in the Legislature's work, or a reasonable doubt as to the true intention of the Legislature, l'or under the abnormal conditions —we need not now use any more polemical adjective-of legislation in jN'i'W Zealand in recent years, there has hf(!H mi abundance, of gross absurdity in mil , statutes and a great deal of insincere and opportunist law-making. The Defence Acts, however, did plainly represent ithe wish of the nation and the intention of the Legislature. Accordingly, when the Appeal Court found itself at the cross-roads of interpretation, there was no cause for the least hesitation. Nothing could be move strictly "corroct," id>.<ral eyes,, than Judge

pooi'Bn's elabonition of I in.-. |miiH in his judgment. The object of flip Oefonce Ai-U (h,i c ,,i,ii is lo imiko belfpi- p(-(ivi-.i<ni lur llm ,|ulexcp of Xew Zeuliiiid. line ul Hi,, min cip;il means nrc-enU'il liy lln< Aγ!.-,' h>, such belter nrori-ioii is' flic **ntil!l<• I'v' training," unifpr whiit is called in ilm ,\,,| a "universal ohliiiulUm tu Im Imiiini," of nil male inhabitants <>) N n v Zchlhiiil, who have rp-iiU'd llii'ivin fur m\ mi,ii|ii = , and arc British sulijort.-. ami m« Mtu-nii I lie ages of i'J years mill :'.'i ji-nrn, Judges, those who clmfi' ii^tihtnt. Ilin law are prism- In fi.i-j?r|., niv Imiium beings—lniinnii lu'lngii, in. ilmilH, ~f a special kind—hut- still liimmii \»\-. ings who must, use Imnmii uuhwm in administering tin- U\v. Ami tin- Imw simply could mil Im itriininhilrivil liy beings dcprivt'il uf fivowill. .ludpv'n differ: they cnuld nut, ilifft-r if nVnv were IVximAtiK nilculating-iiiftcliiiint or (lyiuimonii'li'i-s. British law in fuel, is a thin" that Inula iMf •.- fectly to tlm hands of ii|in.u;hl iunl thoughtful inlerpreliM'H. If it, W i«n» true that; liritish lnw, or, rnlher, the Ijntish interpretation of Saw, were n mechiuiical filing, out, of luueh with life.-—as_ the Socialists, nnd "new evangelists," and the Wreckers gt«iii<rally protend and porliupsi lmlinvr thai, if- is—Judoe t'ooi'Eii ciiiiid mil, have given sucli nn interpretation 1,,, i|,,, JJefenre Arts, nor could Im have referred at, all, as he did refer, to certain conduct, as being "subversive of all discipline." We do not, know what he would have been able to kii.v or do; it is quite cert air, that, if j," ( , had not proceeded as ho did proceed, ho would have been in the situation of a man turned into an absolulnly dai;x room with instructions lo describe exactly the colour and shape of its contents. Somewhere or other, it is possible, there may ho found' some actual flaw or gap' in the, Defence Acts, but it is evident that in the construing of the. Act at any future time there will bo no hope of success for any objection to it that is based upon the idea that British justice is a dead, mechanical thing that is so little in touch with reality it can solemnly defy common-sense or the spirit of the time.