PROCEEDINGS IN THE COURT OF APPEAL.

5

D.—No. 28,

have called upon the writer to show cause why he should not, in default of a full and public apology, be struck off the rolls of the Court, or at least be suspended from practice. We should, without hesitation, have taken this course, feeling confident that it would have received the approval of the Privy Council, had we not been withheld by considerations of the public interest. After anxious deliberations we came to the conclusion that we should ill correct the scandal which your judgment and the comment thereon may have occasioned, by proceeding against a high political functionary in the mode which we have pointed out. We came to the conclusion that we ought not to be the means, could we, with any due regard to our own honor, avoid it, of presenting to the world the spectacle of a community in which the constituted authorities would occupy a relative position so strange and disgraceful. It is in the absence of any fit public opportunity for taking notice of your judgment that, in concert with the other Judges, I have adopted this mode of expressing our common sentiments. The Judges desire to make some further comment on one part of your judgment. In speaking of their right to grant admission to Mr. Smythies, you are reported as saying, " Of their powers in the matter " (i.e., of the Judges' powers), " there can bo no question, but there can be as little question, from the action afterwards taken by the Legislature, that it was intended that those powers should be exercised according to the spirit of English precedents." Hereby you affirm, in substance, that the Legislature, by the Act of 1866, has not merely annulled the Act of the Judges in admitting Mr. Smythies, but has, in effect, recorded its censure of the proceeding as a virtual abuse of their discretionary powers. Wo conceive that you are not justified in putting such an interpretation on the Act of the Legislature, or in construing the 3rd section of the Act as more, at the utmost, than the expression by the Legislature of a mere difference of opinion as to the expediency of the course taken by the Judges. The Legislature, in our opinion, neither has expressed, nor is competent to express, such a censure of our act as you attribute to it, and seek to enforce by your own added comments. The power of the General Assembly to modify rights and duties by retro-active legislation is unquestionable, but we do not admit the doctrine that it can so declare the law, retrospectively, as to reverse, or vary, as ill-decided, the judgments of the Supreme Court, or to stigmatize tho acts of the Judges as in excess of their just authority. The same reasoning would lead to the conclusion that the General Assembly may overrule and censure the Privy Council. In enacting what the law shall be deemed to have been, the Legislature expresses its will for the future; but, as regards the past, does not make the law different from what the Judges have declared it to be, so as to render their past decisions erroneous in law, or to condemn their acts as improper. The Assembly at any given time is not empowered to declare what former Assemblies actually meant by their Legislative acts, although it may enact what they shall, for the future, be deemed to have meant. The interpretative power, as regards this Colony, belongs exclusively to the Courts of Judicature, the power of the General Assembly, as derived from the Constitution Act, being purely legislative. Your implied doctrine on this head is, in our opinion, as erroneous in law as it is derogatory to the Court. Becurring for a moment to a topic already adverted to, 1 think that you cannot fail to have remarked, in the intercourse which we have enjoyed at our present meeting, to how great an extent the efficiency of the Court depends upon the maintenance amongst the Judges of free and friendly, yet courteous and mutually respectful, relations. You must also, I think, have felt how totally impossible it would be to maintain such relations amongst men who seek out occasions to bring one another into public contempt. Nor would I suppose you so insensitive as not to have observed that you have placed both the other Judges and yourself in a false relative position, for which there has been no remedy. On our parts, at least, we have felt compelled, by a sense of public duty, to abstain from marking our personal disapprobation in the manner which, as private gentlemen, Aye might have chosen to adopt. It only remains that I should glance at some of the reasons which have induced me to delay this communication. On reading your judgment, it at once became apparent to me that the Judges could not allow it to pass without some kind of notice. In a matter so strongly concerning all the members of the Court, I did not feel justified in acting until wo should have had an opportunity of personal consultation. The pending of the appeals presented by Mr. Smithies was another ground for delay. Lastly, I felt very strongly that the effective discharge of the general business of the Court of Appeal might bo impeded by tho personal explanations unfortunately made necessary by what has occurred. I have, &c, Geoege Alpeed Aenet, Chief Justice. His Honor Mr. Justice Ward.

Enclosure 2 in No. 1. Mr. Justice Waed to Chief Justice Sir G. A. Aenet. Sic,- — Dunedin, 18th December, 1869. I beg to acknowledge the receipt of a letter, referring to my judgment in the case of liegina v. Strode and Eraser, written by you on behalf of yourself and of Judges Johnston, Gresson, and Richmond. It is dated 15th November, and was not delivered to me, as you probably anticipated, until after your departure for Auckland: I regret that more important business should have delayed my answer, but as your letter is the result of nine months' reflection, and extends over thirty pages of foolscap, I trust that you will not deem my delay unreasonable. Passing over without comment, for the present, the peculiar course you have chosen to adopt in addressing to a Judge whose jurisdiction is equal to your own, a letter of censure on a judgment which not one of you ventured to gainsay in open Court, when it was laid before you as a decision against which it was sought to appeal, I shall briefly reply, seriatim, to the charges you bring against me. Your first complaint alleges, that whereas the first ground taken by Smythies, on his own behalf, in the before mentioned case (Reginay. Strode and Eraser) was " utterly untenable," I " made this point 2