The Globe. SATURDAY, MARCH 31, 1877.

Globe, Volume VIII, Issue 863, 31 March 1877, Page 2

The Globe. SATURDAY, MARCH 31, 1877.

If there is one thing upon which the people of New Zealand have a right to congratulate themselves, it is that of having secured for the high Judicial Bench men who have generally maintained its tone and dignity to a standard seldom excelled elsewhere. And, so strong has the feeling grown in this colony that, for intelligence, ability, and fearlessness of action, our Judges — like Caesar's wife—are beyond suspicion, that seldom, if ever, has any criticism of any moment found its way into the public prints, reflecting adversely upon their official doings. A few days ago, however, we were painfully made aware that the spell was broken, and that, too, in a most ruthless and unwarrantable manner. In the last number of the Jurist a monthly paper published in Dunedin, and professing to be the organ of the legal profession —appeared a most bitter attack upon Judge Johnston with reference to the proceedings in the matter of Woodgate's appeal. Woodgate, it may be remembered, was hanged at Picton in the beginning of the year, and, at his trial, a point of law was reserved for the decision of the Court of Appeal. The Chief Justice and Judge Johnston sat on the occasion, the latter gentleman presiding, as Judge Prendergast had originally tried the case. The tTurist,wemaj state en passant, has it is stated upon its literary staff a well-known member of the Dunedin Bar whose antipathy to Mr. Justice Johnston is no secret, the Judge having, more than once, been compelled, when in charge of the Otago district, to somewhat tread on his toes. And, under the heading of " Another loose proceeding," this is how the paper in question deals with the matter: —" The

report of the case will be read with much disappointment. If the argument fails to meet its difficulties, the judgment sinks beneath them . . . The Court hardly allowed the prisoner's counsel any opportunity to develop

his reasoning If the learned Judgecould not listen patiently to the contentions of the Bur, it might at least he expected that he would seek in his own researches, an adequate supply of logic and authority. They did not, however, extend beyond an old edition of a second-rate textbook. The result is a series of extraordinary propositions, which read like bad translations from a Dutch civilian.

. . . . Immediately" after the conclusion of the argument, Mr. Justice Johnston read the judgment from a manuscript lying before him. With the exception of the paragraphs referring to the argument, the judgment was evidently prepared before the Court sat. We make nocommenton the fact, which we believe is without a parallel in legal history." So it will be seen, that, so far as the main question affecting the lay public is concerned, the gist of the attack lies in the alleged fact that the Judge had prepared his judgment beforehand, and delivered it at the conclusion of the arguments of prisoner's counsel, without waiting to consider them. Now there might be something in the complaint, it it could be admitted that the arguments had been worthy of consideration. But, looking over the report of the case, it is apparent that the only arguments brought forward by the prisoner's counsel, Dr Foster, were at once stopped by both Judges, as travelling entirely out of the record which was there placed for their cognizance. That is to say, that one point of law alone had been reserved for the consideration of the Court, and that therefore it was absolutely impossible for the Bench to allow counsel to raise any others. Of course, in all appeal cases, Judges are in possesson, for days or weeks beforehand, of the grounds of appeal and of the legal contentions by which they were supported at the time the appeal was granted. And, as a matter of course, a Judge so situated would naturally endeavour to ascertain the probable difficulties of the case, and note down, for use in appeal, the conclusions he might arrive at from a search of authorities. Memoranda so made —as was done in the Woodgate appeal case by Judge Johnston —do not in any way form a conclusive judgment. They would remain in suspense until the arguments of counsel were heard. In the case referred to, no new arguments were offered by Dr. Foster, but what the latter urged was on totally new points of law ; at least so the Judges ruled; hence the socalled summary mode in which the Bench's notes were utilised. To us the criticism of the Jurist appears farfetched and pointless. Judge Johnston, for years past, has held the very highest place among our colonial Judges, and, whatever may be said of his over-zealous eagerness on the Bench when bringing to their exact bearings Bar, juries, and officials, his profound legal acumen, his vast experience, and thorough independence of mind, have long been bye-words in the colony. And it is a matter for considerable regret that the Otago Guardian, in an article written some days ago on the Jurist's criticism of this Woodgate case, so far forgot all feelings of decency as to clamour for Judge Johnston's " impeachment," should the Jurist's strictures be borne out by facta. We have seen conductors of journals brought before the bar of the Supreme Court for contempt ; and if there ever was a case when the machinery of the law might be moved for the vindication of the offended dignity of the high Judicial Bench, that of the Guardian is certainly one in point. In its violent diatribe against the action of Judge Johnston, like its contemporary the Jurist, it forgets that the judgment it so unwarrantably denounces, was concurred in by the Chief Justice who sat with him, and who, having tried the case, had no doubt discussed all its probable bearings with his learned brother. So that, in any case, the "impeachment" which the Guardian demands should be applicable to Judge Pendergast as well. To our minds, the two articles referred to bear strong evidences of having been inspired by the same brain.