D.—No. 28,

CORRESPONDENCE RELATIVE TO CERTAIN

4

exaggeration your sweeping statement that our solemn decision, as you term it, opened the Bar and Bench of this Colony "to the forgers and felons of Great Britain." Your account of what took place on the admission of Mr. Smythies is also so imperfect, not to say incorrect, as to be injurious to all the Judges concerned. When, at last, after a delay of many years, Mr. Smythies was allowed to apply for admission, special publicity was designedly given to his application. It was adjourned by the Judges at Dunedin for the express purpose of facilitating objections, and when ultimately granted, the admission took place with the knowledge and acquiescence of the whole Dunedin Bar, including the present Attorney-General and those gentlemen who have since taken the most active part against Mr. Smythies. But the exaggeration of its language, and the unfairness of its statements, are not tho principal grounds of our objection to your judgment. You speak of our action in Smythies' case as a decision. This it was not, in the proper sense of the term. No legal question was raised. Our act was not a decision, but the exercise of an administrative discretion vested in us. The distinction is of importance, because, in your strictures upon our action, you are not expressing a difference of opinion upon a legal point, but are pretending to censure the Supreme Bench of New Zealand for an abuse of its functions. Lest I should be thought to over-state the effect of your remarks, I will cite the comment which your judgment elicited from a member of the New Zealand Bar, who commends the course which you have taken. I extract the following sentences from a letter signed " William Fox," published in the Wellington Independent of 2nd February last. The letter addressed to the Editor of the paper begins thus: " Sir, a most grave judicial scandal, for I can call it nothing else, has been ventilated in the Supreme Court at Otago; and as Ido not think that the Colony has by any means heard the last of it, I propose to invite the attention of your readers to the transaction, in order that they may be the better able to follow it through its present stages." The writer, after giving his own account of Smythies' admission, and the proceedings against him, goes on to say:—" How far, in this case, they (the Judges) may have had exceptional grounds for allowing Mr. Smythies to don tho garb of an honest man, will perhaps appear when they produce ' those most admirable reasons' by which, as Mr. Justice Ward with grim irony insinuates, they must have justified their act, but which they have hitherto failed to put on record. Whatever their reasons may have been, the public will, I think, concur in Judge Ward's summing up, when he says that ' the result of the admission of Mr. Smythies has been, that of all the realms ruled by the law of England, New Zealand has become the solitary spot where, by a solemn decision of the Judges, the roll of solicitors, the Bar, and, consequently, the Judicial Bench, have been opened as a locus penitential to the forgers and felons of Great Britain !' " The writer then proceeds to say : —" Tho Act of 1866, however, if enforced, will render unavailing the sympathies of the Judicial Bench for forgers and felons. But when I look at the array of technical objections which Mr. Smythies urged before Mr. Justice Ward, aud which the latter most properly overruled, I cannot help fearing that some ' most admirable reasons' may yet present themselves to the mind of the Court of Appeal, which may enable ' felons and forgers' to drive their coach and six through its clauses. That the public and the legal profession, jealous of its own character, will watch the proceedings in this case I have no doubt. It rests with the Judges of the Supreme Court, by the manner in which they may succeed in vindicating the course hitherto and hereafter to be pursued by them, to restore or destroy the confidence of the public in the Bar of the Colony, and, I hesitate not to say, in the Court itself. The course pursued by Air. Justice Ward, and his very able handling of the case, to say nothing of the unsparing sarcasm which he launches at the heads of his brother Judges, render it impossible that they can avoid meeting the difficulties of the position face to face. They must ' have it out' with Mr. Justice Ward, with Mr. Smythies, and with the profession, and the latter, I feel confident, will look on, no disinterested spectators." Without adopting the whole of Mr. Fox's description of your style, I quote his letter as evidence that your judgment has conveyed to him at least, as no doubt it has to others, the same impression as to ourselves, namely, that you assume the attitude of a censor towards the Judges of the Court, and pretend to denounce from our own Bench, as a scandalous abuse, a past act of our administration, the propriety of which never came, nor ever could come, under your judicial cognizance. To state such pretensions as these is to refute and condemn them. Her Majesty, on address of the Houses of Assembly, is the sole authority to which the permanent Judges of this Court are amenable for official misconduct. To fair outside criticism, indeed, the Judges, like all other public functionaries, are in a sense properly amenable; but it is a hitherto unheard of thing that a Judge of the Supreme Court should undertake publicly to review and censure, not their opinions, but the past official acts of the other Judges. It is an impropriety which, if not aggravated, is certainly not lessened by the fact that the Judge who has alone ventured on such a proceeding is tho junior of the whole Bench, who has only sat for a short time under a temporary commission. I observe that Mr. Fox has expressed his opinion that the Judges of the Court must, as he puts it, " have it out " with yourself: in other words, he looked forward to your judgment as certain to provoke an open altercation of the Judges, when, at the present sitting of the Court of Appeal, they should be called upon to adjudicate upon Mr. Smythies' petition. What Mr. Fox seems to have considered both a necessary and a desirable result of the mode in which you have expressed yourself, furnishes, in our view of the matter, its strongest condemnation. It is precisely because such language tends to disturb the harmony, and, by disturbing tho harmony, to impair the dignity and efficiency, of the Bench, that it is gravely censurable. More especially as the matter was one likely to become the subject of further litigation, it was a plain duty to abstain from the use of language calculated to excite feelings of angry partizanship. There is but one mode in which tho terms of your judgment could have become the subject of public comment by us. Seeing that the letter which I have just cited unmistakably imputes to us sympathy with crime, together with the desire, and probable intention, to give effect to that sympathy by wilful mis-interpretation of the law of the land; seeing, moreover, it threatens tho independence of our legal judgment, and constitutes an attempt to interfere with a then pending litigation, w re might