OBSERVATIONS UPON THE NATIVE

New Zealand Times, Volume XXXIII, Issue 5497, 8 November 1878, Page 6

OBSERVATIONS UPON THE NATIVE

LA-Nvsxrrrs bill, addressed to sir GEORGE GREY, K.C.B. Tho Native Lawsuits Bill is & measure the ostensible object of which is to remedy a defect in the law set out in tho .preamble, which recites that “ suits have been commenced in the Supreme Court, but the mode of procedure of that Court is not adapted to the determination of such disputes the disputes in question being, os mentioned-in the earlier part of tho preamble, ** differences between aboriginal vendors and their purchasers/ 1 As this BUI is alike novel in its object and provisions, I beg to offer the followingobservations upon them As to the objects of the Bill.—The object of a BUI is generally to make new laws In cases not alicady provided for, or to f amend defects in existing laws. This measure professes to be of the latter class, the preamble reciting, as the reason for legislation, a discovery that the procedure of the Supreme Court Is not adapted to the determination of certain suits ponding, and to bo instituted therein. - : .. . „ But upon examination it would appear that the object of this BUI is not to provide a different Court “procedure,” but to provide and apply a nowlaw totlio cases; and to have that new law administered through a special channel to be provided by the aad counsel of some of tho parties to the amte.the subject matter of which is to bo affected, I ffßd that such U

the object of the BIU 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 che merits of that dispute may ha —to alter the law, to mate it different from that under which the parties contracted and acted is an cj pjst facto law, and as such as much a robbery.as it would l eamnrdei to convert the p\3t innocent act of an individual into high treason. What, I would ask, has the alteration of the law of .evidence so that A. may depose to what B told him 0 had saicjor written—or the abolition of trial by jury to do with the procedure of the Court, as a vehicle for the administration of justice? How will the provision * enabling and giving a vote to each, partisan “ assessor facilitate that procedure,” or in what consists the advantage of depriving parties <«f the righ of appeal even to the Privy Council as it has hitherto existed? That the object of the Bill is as now asserted, and not as recited in the preamble, is I submit made plain, bub any lingering doubt must vanish on considering the provisions of the proposed measure, in treating of which I will discuss the material sections in their numerical order. ...

Section 2.—Though the second line authorises the appointment of one of the existing Judges, the fourth and fifth lines, while placing the words “Judge of the i Supreme Court" in bold relief, really authorises the Governor, that is the Minister of Justice, that is the attorney on the record for many of the plaintiffs, to make the appointment, which may be of just whom he pleases, without cference to moral or professional standing; indeed, the nominee need have neither morals nor profession at all, but may be just the ‘■right man in the right place” according to the views of those who are concerned on one side of the cause he is to decide. Could it be tolerated to place such powers lu the hands of veritable angels of light, where they are associated with the matters in issue as closely as are Messrs. Sheehan, Rees, and Stout? Clause 5 enables the Judge to give such judgment as “ he may think fit ” in relation th the matters set out in the five sub-sections thereto; thus as to those vital and inclusive subjects, over riding the “law and equity,” which it is pretended by section four are to be followed. These sub-sections clearly disclose the cloven hoof. Why give these powers except to enable this extraordinarily appointed Judge to decide according to his own bias or caprice in a manner at variance with the law of the laud. Speak." ing in detail if a contract for sale exist, and it is fit that it should be so, the law will cause it to be en- ~ forced. If a contract be a binding contract in law, why in the name of sense, reason, and justice, should power be given to anyone to “.declare it null and void?” So with the “apportionment.” the law applicable thereto Is ample and well defined. “ Moneys paid on an unfilled contract” may now bo recovers i, 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 6 and 7 provide for each party appointing his own assessor, who will of course be that party’s 1 staunch partisan. Kow, in many of these suits, like as in Karaitiana v. Sutton, a Maori brings his suit and makes a Pakehaand half-a-dozen of his Maori brethren defendants. Is it to be tolerated that the unfortunate Pakelia is to appoint one assessor and the Maoris seven, and that when the 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 we expect the rulings of this tribunal to bo \ carefully perpetuated as precedents in the pages of the “Jurist. 1 * Clause 8 tends towards perpetual motion.

Clause 9 authorises the Governor (i. <?., the attorneys and counsel aforesaid) to make rules for the guidance of the Court. Of this provision I will only observe that I would, if acting for one party, allow the attorney for the other to exercise all the poweis the Act gives, provided to me there should be reserved the 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 the other, and which payment is a condition precedent to the further prosecution of the 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 thero was not in the complaints forwarded by Maoris in response to the invitation to state their grievances issued under the Act of 1872 a single one which the Supreme Court of this colony is not “adapted” to deal with efficiently according to the law of the land framed upon the principles of right and equity, and to deal with them otherwise would be as, I again maintained robbery and injustice. r^ If the law as " administered ** were wanting m efficacv for the purpose, why did any one of the learned gentlemen, who, with ample knowledge of it, put It in motion and rampantly declare that by means of that very administration he 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?" It is not a new procedure that is sought,, but a new law, and that not a "higher" one. I bear well in mind a time when you, sir, holding powers delegated under the Gold Mining District Act, were by every statement and argument, - including the sophistry of doing wrong for the 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 the question has arisen should decide it." Let it not be said that the Premier does not equal the Superintendent.