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Marlborough Express, Volume III, Issue 95, 4 January 1868, Page 4

A Few weeks ago we ventured to give an opinion that Petty Sessional Courts would be the best suited to the requirements and circumstances of this Province, inasmuch as we are unable either to pay a respectable salary to a Resident Magistrate—or to accept his services free. Considerable exception has been taken to our remarks, at least in one quarter, for, says one gentleman, such Courts would not be held without considerable expense; the chairman being entitled to fees, and the Justices to mileage. We frankly confess that we were under the impression that the Justices performed the services required of them gratuitously, as in England, but in this we were in error, as we find upon a reference to the several Acts governing these Courts, they are entitled, the chairman to a fee of two guineas, and the sitting Justices to an allowance of one shilling and sixpence per mile. But the chairman, being elective, might be the present R. M., and as there are at present at least five Justices resident within a circuit of a mile, no fees would accrue to them.'

We have now, in consequence of the exceptions alluded to, examined the question further, and being thereby confirmed in our opinion, we shall proceed to shew cause why we arrive at such conclusion. On considering the Acts, we find, that the Petty Sessional Courts can exercise all the powers of a Resident Magistrate. The Chairman and the Clerk, are paid out of the court-fees, all of which are available for the purpose; while the Resident Magistrate and his Clerk are paid by salary charged against the Province. The fees in the

Resident Magistrate’s Court are all handed over to the General Government, and under the “new arrangement” of the last session, now in force, one-half of them only can be placed to meet the Provincial Charges, the other half being absorbed by the General Government!

To shew clearly how this works, let us suppose the Resident Magistrate’s Courts abolished in Marlborough, and Courts of Petty Sessions instituted in their place. Now the fees in these Courts amounted to £433 last year, and average over £500 per annum, on a series of years. One-half only of this sum, say £250, is available for the payment of the R.M. and his clerk. On the other hand, we may assume that the fees in the Petty Sessional Courts would realise the same amount, but the whole £500 would come to the Province, which, less the chairman’s fees, would be a clear gain to us ! We find that the Chairman could not however, as such, exercise the “ extended jurisdiction” of a Resident Magistrate, although equal in every other authority, but since we have the advantage of the District Court holding this, and more, we see no positive disadvantage in this respect. While on this subject, we may remark that the new Resident Magistrates’ Courts Act says that “ the Court, in all cases brought before the Court, shall have full power to determine all questions, as well of fact as of law, and to give such judgment between the parties as it shall find to stand with equity and good conscience, and to receive evidence as to it may seem fit, whether the same shall be strictly legal evidence or not, and in any judgment to prescribe such terms and conditions as to the time and mode of satisfying such judgment, as it shall deem just and reasonable.” Now—with all due respect for those “in authority over us”—we must protest against the monstrous injustice which is done in the name of Law, by giving such sweeping and, practically, unlimited powers, as are conferred by the above quotation. The season forbids our enlarging upon it this week, and we shall, in drawing our remarks to a close, only refer to one idea. The vague phraseology raises the question as to whose “ conscience” is meant, whether the magistrate’s, the plaintiff’s, or the defendant’s, all of whom are interested in the case before the Court. Were R.M’s in all cases, persons brought up to the study of the law—barristers —we confess we should have a preference for them, but where it is otherwise, and depending on “conscience,” —for we presume the Act means that of the presiding magistrate—then we should prefer two or three “ consciences” to settle any dispute in which we might unfortunately get involved. In making these observations, we wish our readers most distinctly to understand, that we do so in a cosmopolitan spirit, without intending to cast any reflections upon anyone. We consider this remark necessary, because there is a tendency to fit any such remarks necessarily to some person in the reader’s experience.