JUDGE GILLIES AND THE LEGAL PROFESSION.

Daily Telegraph (Napier), Issue 3628, 27 February 1883, Page 4

JUDGE GILLIES AND THE LEGAL PROFESSION.

[_y telegraph.] Auckland, This day. A meeting of members of the legal profession was "held yesterday to consider tho reply of Judge Gillies, to the resolutions pas._l at a former meeting. Mr James Russell presided. There ivas a good attendance. Judge Gillies' letter was read as follows: —"Mr James Russell, Sir, —I-have the honor to acknowledge the receipt of yours of the 20th instant, covering the resolutions passed at a meeting of certain members of the profession relative to. the case of Ilegina v. Gudgeon. I have to thank the members of the profession who have thus given me an opportunity of explaining and vindicating my conduct in that case. To the persistent and malignant misrepresentation of my conduct as a judge on this and many former occasions by a portion of the public Press I disdain to'reply, knowing welt how little thinking men are influenced by such cowardly attacks from behind the hedge of journalistic anonymity, but when any members of the profession consider themselves aggrieved by any judicial utterances of mine, and boldly and frankly express their grievance, I consider it not only my duty

but a pleasure to bo equally frank with them, and to give them such explanations as may cither remove their grounds for complaint or vindicate the propriety of the course I have adopted. In reference to the third of these resolutions, ivhich expresses regret that I should have stated to the jury in such case my opinion that the counsel for the accused in supporting a defence on the ground of consent by the prosecutrix wero not doing their duty as honorable men, permit me to say that if I made such a statement no one would regret it more than myself. But I made no such statement to the jury, nor did I say anything that could bo reasonably construed into conveying that meaning. "What 1 did slate to the jury was this *. that the attempt to prove consent on the occasion charged on the insinuation of the existence of previous adulterous connection between the accused and prosecutrix -tva-i *- on the part if the ,/<•<■_-/" n.jt as to the conduct of counsel, which I shall afterwards deal with) a mean, base, anddishonorabk*Hiicofdcfcn(;e,audAvouldbesoeveu. if it were true and capable of being, proved. I am aware that the standard of what i* honorable or dishonorable varies in different minds, such variation principally arising from education and the surroundings of individuals, but I do not think that 1 am singular iv having been brought up to look upon the conduct of Adam as mean aud dishonorable when he endeavored to shirk on the woman the blame of his having eaten the forbidden fruit (whatever that may mean'), saying, "The woman whom thou gayest to be with me she gave mc of the tree and I did cat." At . iool I have been taught (and I hope it is so taught still) that the' boy who seeks to save his own skin by putting the blame of a fault upon another, equally or more guilty than himself, is a mean coward. In the commercial world I have generally heard it considered dishonorable when a merchant having made a distinct, undisputed, verbal bargain endeavors to evade his just liability by taking advantage of the legal effect of the Statute of Frauds,-or of a plea of infancy. If such be true standards of honor (as I. conceive they arc) what is to be said of a man Avho to save himself from punishment claims the ivoman Avhom he has seduced from her marital allegiance to be an adulteress and himself an adulterer— Avho says to her, in effect, "having once consented to surrender yourself to my illicit embrace yon shall never hereafter refuse under penalty of my proclaiming your dishonor, and I shall thus sale myself from tho consequences :- " If such conduct is not dishonorable I have yet to leain the meaning of the Avord dishonor : nor is the matter altered by flic fact that such evidence is legally admissible. The Statute of Frauds and the plea of infancy are legal defences, but the setting of them up whore the defendant lias no equitable ground for disputing his contract lias been reprobated alike by the Judges and by the mercantile community. Enough, however, as to the character of the defence on the part of the accused. To my mind it was mean, base, and dishonorable, and I can only pity the want of moral perception of those who do not sec it in the same light. I now come to tho consideration of the duty of counsel in reference to such defence. And here let mc say that neither directly or indirectly did I suggest anything dishonorable on the part of the learned counsel engaged in that case; on the contrary, I expressly stated that I implied nothing dishonorable to them, and complimented Mr Hesketh on the tact and delicacy displayed in the performance of what they must have felt to be a Aery unpleasant duty. Ido not believe that either of the counsel engaged—both of Avhom I so highly respect for their ability, courtesy, unci honorable, conduct —could hai'e supposed for one moment that I intended to impute anything dishonorable to them until tho malevolent comments of the Press suggested the possibility of my ivords being so misconstrued. If anything I said wounded their feelings I can only apologise and assure them that nothing was further from my intention, but 1 did what I conceive it was my duty to do in laying down a general rule as to the duty of counsel iv regard to dishonorable defences set up by their clients. I stated then Avhat I still maintain, that no counsel is bound, nor is he entitled as an honorable man, to set up for a client a defence wliich he knows it woidd be dishonorable in the client himself to set up. This I should have thought to be a self-evident proposition, but I. ivill quote in support of it one passage from one of our best known writers on the subject of the duties of an advocate. He says:—'But it is not iv civil causes, where the rights of parties depend so much upon technical and conventional rules, but in criminal cases that the chief odium is incurred by tho profession, ,aud if the license, which we sometimes sec boldly challenged on its behalf, to ! sacrifice every consideration to the one object of enabling a client to escape convict ion were necessary for its exercise it is not easy to sec how that odium could be repelled. Such a license all right thinking men repudiate, and it tends only to the dishonor of a noble calling to represent it as requiring and justifying the use of trickery and falsehood. The principle is as clear as noonday," that no man ought to do for another what that other cannot without moral turpitude do for himself. The advocate stands before the tribunal to •plead the cause and represent the person of Ins client; but lie can't possibly by virtue of his agency acquire rights greater than are possessed by his principal. He may not assert that which he knows to be a lie. He may not connive at, much less attempt, to substantiate a fraud.' And I ivould add that he may not make himself the mouthpiece of a dishonorable defence. It has been, well said that an advocate ought 'to cherish that chastity of honor which feels a stain like a wound,'and my sole object in what I have said and Avritten has been to endeavor to inrprcss on members of the profession the necessity of keeping themselves above suspicion or reproach of dishonor. In a coleny like this, in which wo have not yet it highly educated and cultivated public opinion developed as in the Home country, it becomes peculiarly a standard of honor amongst the profession, and if in endeavoring to do so I incur criticism or approbrium, or even the censure of my brethren of the profession, I shall console myself with the inward assurance that my efforts will not be without their good fruit in the future. — I am, &c., Tuos. B. Gillies.—Auckland, February 21st, 1883." Affidavits were read which had been made by J. lunselle, shorthand reporter for the Herald, and by J. M. Geddis, shorthand reporter for the Star, certifying to the correctness of their reports in those journals of the Gudgeon ease. After a long discussion the following resolution was carried on the motion of Mr C. Alexander, seconded by Mr Cooper:— "That this meeting acknowledge the receipt of Ids Honor's letter iv reply to the resolutions passed at a meeting of members of the profession held on the 14th instant, but see no reason for departing from such resolutions."