OBSERVATIONS UPON THE NATIVE LAWSUITS BILL. ADDRESSED TO SIR GEORGE GREY, K.C.B.

New Zealand Times, Volume XXXIII, Issue 5478, 17 October 1878, Page 3

OBSERVATIONS UPON THE NATIVE LAWSUITS BILL. ADDRESSED TO SIR GEORGE GREY, K.C.B.

The Native Lawsuits BUI U .a measure tho ostensible object of which is to remedy a defect in tho law set out in tho preamble, which recites that “ suits* have been commenced in tho Supreme Court, but the mode of procedure of that Court fa not adapted to the determination of such disputes the disputes in question being, as mentioned in the earlier part of tho preamble, “differences between aboriginal vendors and their purchasers.” As this Bill is alike novel in its object and provisions, I beg to offer the following observations upon them: As to tho objects of the Bill.—'The object of a Bill is generally to make new lavra in cases not already provided for, or to amend defects in existing laws. This measure professes to bo of the latter class, tho preamble recitißg, as the reason for legislation, a discovery that the procedure of tho Supremo Court is not adapted to the determination of certain suits pending, and to be instituted therein. But upon examination It would appear that the object of this Bill is not to provide a dilfsrent Court ‘ * procedure,” but to provide and apply a new law to the cases, and to have that now law administered through a special channel to be provided by the attorneys and counsel of some of the parties to the suits, the subject matter of which is to he affected. I find that such is the object of tho Bill by coupling its real object with its real effect, and its real and* necessary effect is legislative robbery, for when a claim of right is in dispute--'whatever tho merits of that dispute may ho —to alter tho law, to make it different from that under which the parties contracted and acted is an Cj: }wt facto law, and as such as much a robbery as it would t;o a murder to convert tho past innocent act of an individual into high treason. What, I would ask, has the alteration of tho law of evidence—so that A may depose to what B told Idm C had said or written—or tho abolition of trial by jury to do with the procedure of tho iCourt, as a vehicle for tho administration of justice? How will the provision enabling and glvinga vote to each partisan “ assessor facilitate that procedure,” or in what consists tho advantage of depriving parties cf the right of appeal even to the i’rivy Council as it has hitherto existed 2 That tho object of the Bill is as now asserted, and not as recited in tho preamble, is I submit made plain, bpt any lingering doubt must vanish on conside ring the provisions of tho proposed measure, in treating of which I will discuss tho material sections in their numerical order. .Section 2.—Though the second lino authorises the appointment of one of tho existing Judges, the fourth and fifth linos, while placing tho words “Judge of the Supremo Court ” in bold relief, really authorises tho Governor, that is tho Minister of Justice, that is tho attorney on the record for many of tlis plaintiffs, to make the appointment, which may bo of just whom he pleases, without reference to moral c*rprofessional standing; indeed, tho nominee need have neither morals nor profession at all, but may bo just tho “right man In tho right placo” according to tho views of thoso who aro concerned on one sido of tho canw ho is to deddo. Could it bo tolerated to place such powers in the hands of veritable angels of light, where they aro associated with tho matters in issue as clowly m aro Morars, Wioolian, Keos, and Stout ? Clause .> enables tho Judgo to give such judgment a** t Iklnk i!it In relation Hi the matters set out in tho five sub-sections thereto; thus as to those vital and Inclusive subjects, over riding tho “law and equity, ' which it is pretended by section four aro to be followed. These Hub-scctioim clearly disclose tho cloven hoof. Why give those powers except to enable this cxtraordln arlly appointed Judge to deddo according to his ovm bias or caprko In a

manner at variance with tho law of tho land. Speaking in detail if a contract for sale exist, and it is fit that* it should he so, tl.e law will pause it to be enforced. If a contract bo a binding contract in law. why in the name of sense, reason, and ‘just’ce, should power bo given to anyone to “ declare It null and void?*' So with tho “apportionment.” tho law applicable thereto isample and well defined. “ Moneys paid on an unfilled contract” may now be recovere 1, and lastly, if persons are entitled to land, the’law is capable of vesting It in them for just such estate as there exist* the right to. Clauses G and 7 provide for each party apjxdntlng his own assessor, who will of course bo that party’s staunch partisan. Now, in many of these suits, like as in Karaitianu v. Sutton, a Maori brings his suit and makes a Pakeha and half-a-dozen of his Maori brethren defendants. Xs it to ho tolerated that tho unfortunate Pakeha is to appoint one assessor and the Maoris seven, and that when tho majority of votes have a negative if not a ruling power in the judgment of the Court, as well on question of law as of fact. Well may wo expect tho ruling* of this tribunal to bo carefully perpetuated as precedents in the pages of the “Jurist.” Clause 8 tends towards perpetual motion. Clause 0 authorise* the Governor (i e , the attorneys and counsel aforesaid) to make rules for the guidance of tho Court. Of this provision I will only observe that I would, if acting for one party, allow tho attorney for the other to exercise all the powers tho Act gives, provided to me there should bo reserved tho making of these rules, for whoever wields that authority can add to or take from the effect of the act to an unlimited extent. Clause 10. —In many of these suits one of the parties has become entitled to payment of costs from tho other, and which payment is a condition precedent to the further prosecution of tho suits of such other party. It is, of course, convenient to that party’s attorney to provide this new way to pay old debts. Having discussed the objects and provisions of the Bill in detail, I would add that there was not in tho complaints forwarded by Maoris fn response to the invitation to state their grievances issued under the Act of 1572 a single one which tho Supreme Court of this colony is not. “ adapted ” to deal with efficiently according to tho law of tho land framed upon tho principles of right and equity, and to deal with them otherwise would be as, I again maintained robbery and injustice. If tho law as “administered” wero wanting in efficacy for the purpose, why did any one of tho learned gentlemen, who. with ample knowledge of it, put it in motion and rampantly declare that by means of that very administration ho was about to transfer such prodigious amount of property from the European owners in this province (to say nothing of promised subsequent peregrinations north and south through the land) that his percentage on its value would [make his pile?” Itjis not a now procedure that is sought, but a new law, and that hot a “higher” one. I bear well in mind a time when you, sir, holding powers delegated under the Gold Mining District Act, wero by every statement and argument, —including tho sophistry of doing wrong for tho promotion of right,—that self-interest could suggest, urged and importuned, to bring those powers to bear on existing questions of right, but when you refused, though possess-d of ample power, nobly saying that “the law under which tho question Ims arisen should decide it.”- Let it not he said that the Premier does nob equal tho Superintendent.