D.—No. 28

16

CORRESPONDENCE RELATIVE TO CERTAIN

fit, communicate to you the contents of my letter to him. But. if lam not mistaken, I wrote two hurried notes to you, in one of which I intended to, and I think I did, assure you that I would, if requisite, write to you more fully from Auckland ; and it can scarcely be suggested that one who volunteers his assent to a gentleman reading an original letter, would decline to communicate to the same gentleman so much of the contents of that letter as it might concern him to know. But you complain that the Judges threatened you. We neither threatened nor meant to threaten. All thought of proceeding " in pcsnam " we discarded, and all action by the Court of Appeal, or by the Judges of the Supreme Court, was treated as out of the question. It thus became unnecessary to discuss either the technical impediments or the more substantial difficulties which might beset any formal proceedings by the Court. Possibly, however, if the Court should ever be constrained to act in such a case, it would so frame its process as to embrace every phase of that case, and would so limit its judgment as not to exceed its jurisdiction. But in the present instance the Court did not prejudge the result of its supposed possible action. Of course the spontaneous action of any Court of Justice taken to maintain its integrity by vindicating tho character of its Judges must always, as in the case of a private individual complaining of a libel, imply that the mover assumes a wrong to have been done, and must thus far of necessity lay the Court open to the imputation of prejudging its own case. This was one of the considerations of public policy which influenced my own conclusions herein : but surely such considerations, with the embarrassments which beset judicial officers in attempting to vindicate themselves, might induce some little moderation in those critics who thoroughly appreciate them. Indeed, the Judges called the attention of Mr. Justice Ward to your letter more especially with two objects, namely, firstly, as proving that they had not mistaken the drift or over-estimated the effects of his remarks ; and, secondly, because the indignity which he had (in their opinion, wantonly) put upon his brother Judges w ras aggravated by their consciousness that they had no legitimate opportunity either to answer his censure or to resent the letter which his censure had elicited. You indeed again suggest that the Judges might, and (I suppose) ought to, what you term " have it out," I presume, on the Judicial Bench, with their fellow Judge, and with this view you refer me to the difference of opinion, which was expressed in open Court, between the Lord Chief Justice of England and Mr. Justice Blackburn, in Governor Eyre's case. I have no memorandum or report of thatcase, but, if my memory serves me, it was something like the following:—Blackburn, J., I think in addressing the Grand Jury, stated his view of the law on a great question both of constitutional and of municipal law, at the same time giving his hearers and the public to understand that those views, connected as they were with the disputed powers of the Crown and its officers acting under a proclamation of martial law, coincided with the views of the Lord Chief Justice and his fellows, and that he, Blackburn, was authorized to say so. He had previously consulted the other Judges, but had entirely mistaken their views of the law. The Lord Chief Justice, on reading the report, found that his views had been erroneously quoted, which, had he anticipated it, he would have corrected by himself attending and expounding his own opinions ; and this circumstance affected him the more because he had on a previous occasion connected with the same subject matter, and the same Governor Eyre, published his charge to the Grand Jury in an elaborate report. The Lord Chief Justice, therefore, with perfect courtesy and respect towards Blackburn, J., stated in open Court his own views of the law ; whereupon Mr. Justice Blackburn expressed his regret that he had misunderstood his brother Judges, and so had been led to quote them erroneously. This, I think, was about the course which that case took. If so lam unable to discover the slightest analogy between it and our own case. There had been no censure by Blackburn, J., of his brethren on the Bench. There was no retaliation or recrimination by those brethren. If Mr. Justice Blackburn, some years after an administrative act of his fellow Judges which ho condemned, had, upon that act coming incidentally under his notice on the Bench in a case to the decision whereof remarks on the act of his fellow Judges were not necessary, yet gone out of his way, not merely to guard himself from being supposed to assent to such act, but further to censure those Judges, to treat their act and themselves with " grim irony," and, while avowing ignorance of the reasons of those Judges for their act, had yet held up those reasons (whatever they might be) as well as themselves to public scorn ; and had the Lord Chief Justice and the other Judges, on first meeting Mr. Justice Blackburn many months afterwards in open Court, there commenced and carried out an interchange of complaint and rebuke with him, it is difficult to say which side the English public would have deemed most censurable, —whether the assailant Puisne Judge or the Chief Justico and his fellows. It seems to me that such conduct in the Chief Justice and his fellow Judges would have presented to us a rock of offence to be shunned, not a precedent to be followed. Yet in no other way, and on no other condition, as it appears to me, could the remarks of Mr. Justice Ward have been reviewed in Court by those whom he had assumed to censure. Even if the Smythies' appeals could have been heard, the propriety or impropriety of his admission could not have been brought under review. In truth, however, those appeals could not be heard. In regard to one of the petitions for leave to appeal to the Court of Appeal, in connection wherewith Smythies might have attempted to relate the circumstances attending this admission, Smythies had been placed under terms to find security, which he swore he w ras unable to find in fulfilment of the condition imposed. Under the circumstances, and for reasons stated in open Court, the Judges did not feel themselves justified in overruling this statutory act of discretion of Mr. Justice Ward in putting Smythies under terms, and so his appeal could not be heard, and no question was raised before the Court, under mask whereof the Judges could, though even by something like an abuse of their judicial office, have " had it out" with Air. Justice Ward. Indeed, you seem, from one of your observations, to be conscious of this ; for you intimate your opinion that tho Court of Appeal, —that is, I presume, the Judges whom Mr. Justice Ward took on himself to censure, —ought, while secretly resenting his rebuke, yet to leave the matter in the position in which, it was thus placed by Smythies being left without appeal. Before leaving this part of the subject I wish to notice your remarks about the Court seeking an enforced apology from yourself. Speaking for myself, and I believe I may say the same for the other Judges, nothing could be further from my wish than to see the dignity of your high position in this Colony, both social and political, at all impaired. Of course, if you had felt that, in censuring the