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Lorsque le document est trop grand pour dtre reproduit en un seul cliche, il est film6 A partir de Tangle supdrieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 :;.>>'.-. l>l«,i».T^!l IN THE SUPREME COURT OF NEW BRUNSWICK, (GTlO-VT-lSr SIIDE,) IN THE MATTER OF DAVID S. KERR, BARRISTER, ON APPLICATION FOR AN ATTACHMENT AGAINST HIM FOR CONTEMPT OF COURT. ARGUED TRINITY TERM, JUNE 1881. Respectfully dedicated to the Legal Profession and to the public of New Brunswick, by the Author, DAVID SHANK KERR, Q. C. ST, JOHN, N. B. PRINTED AT THE DAILY TELEGRAPH JOB OFFICE. 1883. I^REZFJ^CJE. By tho I'eciiiest of many perHona cUisiring a copy, the first twouty-throo pages were thrown into pamphlet form as roported in the Daily Telegraph papers, of Trinity Terra, June 1881, with an argument, hy permission, sult.sequontly a^Med, to await the expected judgment of the (Jourt of wliich no intimation was given until E:ister Term, 1883, when His Honor the Chief Justice, as I was informed, in the course ri delivering several judgments at Term, announced that in A'e Kerr the Court had concluded to let the nmtter p. This schemed unfortuu;ite. 1. If the Court, after so long a consideration, saw no grounds for niakiug the rule nbsohtte, in justice to tho accused, they surelij should have disrharf/ed it. 2. A judgment would have inuuh better com[>orted with the dignity of the l>ench and been more aatisfactoiy to the Bar and t(j tin; public — the latter having esinced an unusual amount of interest in the question and very extensively iiirpiired for judgment upon it. 3. The Attorney General having admitted in his argument for the Crown the correctness of the law as stat(;d by Lord Chief .lustice Cui-kburn, in Wason v. Walter (L. Rep. 4, Q. ii. 93), and other books, that Judges were public servants and subject to remark if occasion might wairant it, in the opinion of a jury, for the public iK-netit, therefore a proper question for juries, by the ordi- nary modes of trial, and whether guilty or not, it could not be foi- Judges to deprive the accused of his lawful pl(«is of (h^fence, and proper modes of trial — tyrannicalljj iidj^ulginy and punisJiing him, agaiiisf lan', in t/ielr on'u casf, \ suc- ceeded, thirty-eight years ago, in two actions which 1 brought for one Doak, and one Hill, against the Speaker ami ►'Sergeant-at-Arms of tl'.e House of Assembly, and thereby, our Supreme Court put an end to the House of Assend)ly trying its own case as " Judge and party," instead ot leaving it to the ordinary tribunals of the country : (See Hill v. Weldon 3 Kerr's Report, p. 1 to o?, inclusive) and I feel assured that, upon the authorities cited for the defence, the same Court should havt; alike determined, in this application, and will never appear again, before the puldic, as "Jiidge and party" in its own case. 4. It would have been very satisfactory and in fact very valuable to all c(jncenied in the administration of justice, and to the country at large, had the various ol)jections raised in the defence, been disposed of by a well considered judgment of the Court, and api)eared in the j)ublislie(l law reports of this Province. But foi' myself, I am content, what 1 did was t'oi' tiie rights of the legal profession and the ptddic benefit. I liad every confidence in the law, and in the integrity and learning of the Bench. I answered, without attempting to invoke excitement or interest fioni any side, and 1 am quite satisfied that the Court declared what they considered the hett, on the pecaliar occasion. Many reasons made me very sorry for the events which occasioned the application to the Court. I have iwt indeed ceased in my regrets, wishing well, as I truly do, towards every member of the Court. Nor can I believe any Judge on the I'.eneh, nor any man in this Province can exceed me, in a desire to uphold the dignity and value of our 8u))reme Court. For the proper understanding of the natun; of the alleged libels, the letters containing theui, with another immediately connected therewith, upon thi> rights of Juries, will be found verbatim in the Appendix.* The law, as propounded by the defence, from the several books cited and admit- ted to be good law, by the Attorney General in his argument for the Crown, as to the Judges being public servants, and, like all other ptiV)lic functionaries, amenable to the public, who pay them, and may be lawfully remarked upon if occasion demand it, in a proper manner for the public benefit, is of incalculable value, not mei'ely to the public at large l>ut also to the Judges themselves, towards promoting a "well kept Bench," (see argument on Proposition 10 of defence) and accords with the late Statute passed hi England, 44 and 45 Vic. cap. 60, for the protraction of Newspaper Proprietors. DAVID SHANK KERR, Q. C. *NoTE.— From my experience at the Bar I am eiitirely satisfied if the than^es suggested at the end of my second letter, in the appendix, were enacted by the Legislature, they would greatly improve our admiuistnition oi juBtio& Lttorne lule iV' irtidavi Lffitlavi Two otl ] rgume ttorne; ). 8. K ). S. K. II )oiiclusi letter o: jetter o: L furthi 1 CONTENTS. ittorney General's motion tor Attachment, 1 lule iVisi for Attachment, j irtidavit of David S. Kerr, showing cause, with remarks, 1 Lffidavit of J. C. Barbaric, M. P. P., 6 Pwo other Affidavits of D. S. Kerr upon the organizing of the Sup Court, 1784, g argument of D. S. Kerr, showing cause, 6 attorney General's argument for the Crown, 17 S. Kerr's argument in reply, 21 ). S. Kerr's two additional suggestions in Telegraph, Sept. 6, 1881, by per- mission, on 7th proposition in his argument, 25 Conclusion of the Court to let the matter of Re Kerr drop, 26 APPENDIX. [jetter of D. S. Kerr to Daily Telegraph, published 22nd February, 1881, .. . 1 setter of D. S. Kerr to Daily Telegraph, published 24th February, 1881,. . . 4 L further Letter of D. S. Kerr to Daily Telegraph, published 21st March, 1881, referring to the previous ones upon the rights of Jurors, 8 li IN THE SUPREME COURT IN RE DAVID S. KERR. Oq the sfc.ond Saturdaj' iti Easter T>rin last, 'the Hull. Attorney General nmved tlie oourt at Finiericton and obtaiEt-d tliK t'ollowitig rule upon the aftidavits therein nar.ied, which wer« 33 to vhH publishing only, tiie rule bciiigfiually iiiii"le returnable iu this Term. In the course ■of the motion the Attorney Iveueral uamed, as he read, portions of the pipers, some matters which he ■contended to be objectionable and cited several authorities, more es' ecially from the Privv Councl case.s, and Reg vs. Wilkin- son, 41 U. C. Q, B I, etc. The authorities being all reviewed in the defendaat's argument, are not heie stated. In thi-; SurKEME Court— ckown side: Ea':ter Term, in the Forty-fourth year of the reign of Queen Victoria, — Tuck. It is ordered that David S. Kerr, Es({., an attorney and barrister of this court, do attend thi- court on the sncond Tuesday in Juno next to shew cause why an attachment should not be issued again.it him, or why he should not be coniinitttd for contempt of this honorable court for having had printed and published in the Duihj Ti-Ji:(jra])k n-'Ws|iAi>er, a iu'wspaper piuiti-d and pubUdi"d in the city of Sr John, in the issue of that news|iap"r of the 'J^.id day of February, a communicRtioii headeii, "The Administration of Justice," dated St. John, 12(h February, 1881, an.i addressed to the edi- tor of the IkiiJy Tcloraphiuni M P. P., of St. John, and signed by Iniu the said David S. Kerr, and for having had printed and publish ed ill th<' iiHS e of tliat newspaper of the 2'lfh day of February last another communication headed "The Administration of Justice," dated vSt. John, 14th February, 1881, and likewise addressed to the editor of t^e Daily Telegraph and M. P. P., of St. John, and signed t>y him the said David S. Kerr and in which said com- munications the said David S. Kerr has been guilty of a contempt of this court, by publish- ing iu the said communications divers matters as therein set forth, which scudaloiisly and contemptuously reflrct upon His Honor Mr. Justice Wetinore iu his capacity as one of he judges of this honorable court, in the discharg' of his duties and in the administration of jus- tice by him as such judg", th'reby tending to defame, obstruct and biing into contempt the administration rf justice in the courts of this Province. iTjJon reading the said communication, printed and publishod in the said two issues of the news^nper afore.«aid, and upon reading the several affidavits of James Kannay, William H. Tuck, John James Fraser and Owen McLaugh« lin and upon motion of the Attorney General. By the court, (S.'d.j E L. Wetmore, Deputy Clerk of the Crown, In this term Divid S. Karr, Q C , showed cause in person — the practice of the Court not allowing him asisiatance of counsel except by excluding hia own services — Daniel Jordan., E'-q , barrister, reading certain afrldavits for Mr. Kerr. Mr. Kerr said: In responding to the rule I may observi', in the outset, I have liad nothing to do with the v rious communications appear- ing in the p pers since the motion for attach- ment, determining to meet the charge with my own {)ositioi)s and views, which I will endeavor to put forth with that respect and moderation becming the event of so serious and hitherto unknown a proceeding. The rule aiming to take and imprison r.i'» — to take my character, my |'ro[»'rty, my liberty, and tootheiwise destroy me — witliovtt a charge of any bgal otlVn-ce, witl.out a prosecutor, or juries, or Judges, save rilVended party accust rs, to pass upon and condenin me — in fact wilhont, tkc mcav.s of any trial — apj)- ar.s, indeed, to demand very grave coosi'leratious, as well for the court in regaid to -tA mode of procedure as fo'.' myself iu taking ob jections to it. . I will lirst submit some affidavits of facts of the truth and explanations of my letter^>, and th^-n my propositions and arguments. [The Attorney General liere obj.'cted to thp atlidavits; I replied and the Court dtterniiucd to hear and judge of them.] AFFIDAVIT OF DAVID S. KEUli, Q C. In the Supreme Court : I, David S. Kerr, of the City of St. J-.hu, in the County of St. John, barrister, make oath and say : — 1. That early iu the second week of Easter term, last past, in the City of Saint John, I heard a rumor, that it was thought the At- torney General would make some motion on Saturday of that week against me, for publish- 2 IK TlIE SUPREME COURT. ing certain letters in the Dalhj Telegraph, in February last past, reflecting oa Judste Wet- more, but I did not learn the nature of the motion, and I heard in St. John, on the second Saturday night, that a rule nisi had been granted by this honorable court for me to shoff cause on the following Saturday why an attach- .nent should not issue against me for contempt. I went to Fredericton the following Monday and procured an enlargement of the rule till the first day of Trinity term next, and on look- ing at the papers, on file with the Crotvn officer of this honorable Court, I could discover no other papers except the affidavits named in the rule nisi, as to my publishing the letters named in the role; but 1 could not discover any affidavit or other proof made by anybody, either stating what he or they might consider a contempt, or denying the trnth of the facts stated in said letter8,nor who tbe complainant, informer or relator was, or on whose behalf the motion had been made, except that the Attor- ney General had made such motion ; nor could I discovt-r anything set out in any paper or document by which it might tippear that I had been guilty of a cont-empt of this honorable court, in anything published in such letters, Dor was there anythiug set forth in the rule itself, or otherwise, by which i could be in- formed what to answer to, and I am wholly without information, except the undisputed letters themselves, produced by the Attorney General, as I understand on making the mo- tion, and some remarks I heard the Attorney General had made on some parts of those let- ters and, to avoid mistakes, I wrote to the Attorney General, some time since, to serd me the copy of the rule, which, after some ac- cidental delay, I have lately received, I send- ing him back the original rule with my ac- knowledgement that I had recnved a copy; but the copy so received designates no words or portions of the letters, or what parts are c>asidere>i libelous or contemptuous so pro- duced on the motion, and thus, in tne dark, 1 am really at a loss how to answer; but, undwr the circumstances, I will give the best answer it is possible for my memory and observation to give and afford to this honorable Court. 2. I very distinctly swear, that, in the let ters alluded to, I never intended any contempt to this honorable cour. in point of fact, and I equally affirm, I verily believe, I have ofTered no conte npt towards it, in point of law. 3. I did not examine the letter, at any time, said to have been produced by the Attorney General upon the motion, but I did publish in the Daily Telegraph letters of the date speci- fied in the rule nisi, and I have no doubt that the letters produced by the Attorney General upon the motion are copies of my publications, and I swear that the facts stated in those pub- lications ari true, so far as it w is possible for me to be accurate from memory and observa- uon. 4. I had no previous quirrel with Judge Wetmore,wa8 on gooil terms with him,aud with all bis connexions and though I considered he had treated me very badly on the trial, I knew of no cause for it, as I treated him with every forbearance and respect. In His Honor' i charge to the jury he reflected very disparaging- ly upon me, iu regard to the time taken up ia the cross-examination of witnesses known to be the plaintiff and one Wat^ers, and told the jury bow he had limited me to time, whereas I knew the senurks so made were entirely with- out foundation, and that I had occupied no un- necessary time, but this was not all, for His Honoi told the jury the Chief Justice was framing a bill for the Legislature, among other things that a judge might exercise bis discre- tion to control cross-examinations, and His Honor said he "hoped it would stop those eternal, everlasting cross-examinations, coun- sel dilly-dallying, and if a clock was iu the court room, looking over their shoulder eve y once in a while to see how the time was going, there should oe a specific legislation to stop unnecessary examinations and cross examina tions." I quote the foregoing from the Olobe of the 26th January, the only paper of the date I have on hand, to show a specimen of the learned judgfc's charge, and though linttr- prtted all these unwarrantable remark'* to serve the plaintiff's side (as I thought done from the first) I should have borne with all had I not believed that what the learned judge said was really the case, that he Chief Justice (of course influenced by His Honor Judge Wetmore's ac- count) was actually getting a bill prepared to put it in the arbitrary power of a judge to kill a cause whenever it pleased him to be tyranni- cal. Upon this I felt bound, in duty to my- self, the bar and to the public, to come out with the truth in the hope of stopping a great evil, and placing Judge Wetmore and myself fairly before the public, I duly considered the unpleasant duty and the very unpleasant con- sequences of it, and fblt myself in duty bound, for the interests of the profession and the public benefit, to write and publish what I diJ, as fairly, honestly and truly, as it was possi^^le for me to do, without malice to Judge Wetmore, and wiih a personal acquaintance, with facts and cases which I know no other member of the Bar possessed, and with a view likewise of restoring the old practice, considering the present,which I main- tain to have been introduced against law, ma- terially destructive, as I think, of the rights of juries, counsel and suitors, I took all the pains I knew how, to show to the Legislature and to the public the evil effect of the present prac- tice. I suggested in my second letter six sec- tions of a Bill to amend the law on the subjecc I had written upon and I went to Frederictou, after publishing the letters, tor no other pur- pose than, expressly to see the Attorney Gen- eral and other members of the Legislature with the view of having the law enacted. I accor- IN RE DAVID S, KERR. I main- ma- i dingly had two meetings with the Attorney General by api ointment, ezprossly m the sub- ject of enacting the law, and while he received me very kindly on the subject, I never heard a word from him thnt he thought I had com- mitted any contempt of Court, nor did I iiDBgine he had any such view, and I wrote a third letter, dated 10th March, and published it in the Telegraph of 21st March last, giving an abstract ot Bushell's case, cited in my let- ter, in the rule and abstracts of other cases. 5. I further say, that the two letters men- tioned in the ruleniii were originally intended by me, to be one letter, but I found on writing on the subject they were too lengthy for one letter, and 1 was obliged to make two of them. 6. I considered it necessary in proposing to the Legislature, who alone had power to regu- late the proceedure in our Courts, and to the public, to show the cases which had occurred withiu my own personal knowledge under the former practice, by the ablest of our judges, in leaving questions to the jury, and the ettect of sucn a course, and to compare it with our present practice and cases occurring under it, within my personal knowledge, in withholding such questions from the jury, and the effect of it on the trial of causes, thereby to show the fornipr to be the better practice, and that the pres nt practii-e was apt or liable to be mis- used to the injury of suitors, iu lessening the rights of ceunsel and juries, as judges were liable to err on trials as well as juries. 7- I further say that as one of the matters, 1 iun informed, Mr. Attorney General ob- jected to in my second letter, ou his motion to the court, as to JudgH W'eimore denying what I said tdat he liad told the jury in Doe deui MoHit vs. Thompson, at Dalhousie, that it would be perjury U' they brought in a verdict contrary to his direction. I affirm again that he did so direct them, and denied it at Term, and I have nothing to qualify in the matter except this, that the learned Judge might have fov- {^otten that he said so. I have known instances more than once, of judges dilfering from coun- sel as to what the judge said to the jury, and I know enough of human memory to know, it is apt to fail, and my allusion to the circumstance VM open to that construction. The judge might have wilfully denied it or he might have pure- ly forgotten it ; niy mind utterly forgets many things, but my mind was so vivid on this sub- ject — the words were so remarkable — if I ever were cajtable of speaking confidently of any thing, from memory, I felt I would of that, and, however it might have occurred, the ef- fect was the same. I felt that my client, a very poor man, lost his verdict, as I believed, by it, and if Mr.Attorney General thinks I am guilty of contempt of court, in alluding to the sub- ject, I entirely differ from him, in law and fact. I further say, that I am informed the At- tomey General, on the motion, took objection to my quotation from the beautiful play of Shakspeare, "All's Well," "The property by what it is should go, not by the title," and I confess I meant this to represent that I should allude to Judge Wetmore's conduct, on the Bench, in Willett vs. Lockhart, to be judged by itself and not by the dignified, even handed.un- offending and patient conduct which unites in ideas with the title of a Supreme Judge. 1 confess I viewed Judge Wetmore's conduct, in the case, as objectionable in many ways, whether resulting, merely.from that very large and dangerous power called "a judge's discre tion" or upon what grounds I know not, but I saw as clear as the shining sun that he took a strong side for the plaintiff. ft is indeed, difficult, if not impossible, especially where one is not noting against a j-dge (and which I was not) to give an adequate idea, by description of the matters alleged, but I will attempt it. The plaintiff, as I was intormed, (and he amplv proved it himselO was a very clever-educated. Nova Scotia Yankee, with his education highly finished by a considerable career in California. He seemed equal to any emergency and was the great witness in the cause. So soon as it was opened and plaintiff called and sworn, the learned judge said to the plaintiff, "you are unwell, aiu't you? sit down," or wonls to that effect. Wiine.ss complied. I was surprised and somewhat dismayed, for I had heard of the clever tricking of this witne.ts. and of his cleverness senerally. 1 know how much it embarrassed me to deal, .successful'y, with an adveise witness sitting down ou cross- examination, instead of standing up, and lu view of this, and in the absence of Dr. Tuck, the counsel suggesting it, I thought it very re- markable why the judge, uninformed as to either side — as I supposed, until brought to his notice by evidence in the case — should know and volunteer so unusual a course, know- ing well, from his own experience us counsel, what a great disadvantage he laid my client iu shielding the witnesses looks and manner, especially when cauaht iu cross-examination. It is trui? the witness afterwards told the court of his ill health, and substitution of one Waters, nis chum, tt act agent; aud every- thin'- heenied pi nned by him to invoke a sympathy for his reelect to build when he ought. But I verily believed at the tinie, and dc now, that his then alleged ill health was a mere deception and fraud, to invoke sympa- thy and prejudic • the defence; that his cough was feigned and his lungs as good as mine. In this llrui belief 1 watched him the 40 days, through all thu changes of weather, and no »ne about the court seemed to stand it better than he. But he got the sympathy thoroughly in- voked. The Doctor proceeded with the wit- ness' examination, the witness spoke low, and, with a long moustache, he artfully con- trived to make it difficult to hear him. I constantly begged him to speak louder. The i.y me, ^vpkeue; cootit: learned judge answered me at can tim«", wit- nest could not do it; but he seemed »uperhii- manly "cut and dried" for nil (lUfstiou;), how leading soevar iinj niij^'it be, tlie Doctor al- ways succeedinfif, by the judf^'es liiacrrttioii to put this question so leading that it was virtu- ally the D'Dctor's own ti-lliig «-itues3 what was wanted, and it Wiia sn'>\, no dj^ctions availing to stop this course, virtually the smne evidence, in many cases, on subsetjuent duys of ex>initna- tioD, was repeated. At one time thd Doctor, apparently tired of proving hi^ janiculara, lurning to me piT.-iOually, and shining like the morning mm over the court, jury and all around, said, "you are defending for time, ain't you?" I tjuswertd I was aatonished at him, th it he could hardly exprc'^s i\ greater insult to ine, and, instead of the leurued jiudge di,scountenanciiig such an insult, lis rather eu- couragou it, l;y alluding more than once, in a 7ery insulting way as I thought, to the counsel fees Mr. Loclchart (then keeping rae there) would have to pay for my service?, or rather that I was wasting time to get counsel fees. On croa3e:iaminatio-n of this witne.'ja I found It (luite another matter while going over the ground of his preliminaries, in direct examin- ation as to his la/ge employment in Boston as builder, and showing by himself he had for many years been in a different employment from house builder, I said on one occisiou, '•give me a direct answer, don't eijuivocate,^" with that the Dr. roye with tremendous iudig- iusulting the witness, Ol I! I nation and said I was and then the judge came down upon me; "he would not allow any witness to be insulted in tliat court," etc., and I was fjuite put down and had to be extreujely ciarefui in my words, that I might alFjrd no such advjiulage of tri- umph to the witni;5s again, buc he aeen.ed to fully perceive how the wind wa!^ blowing, would object himself in a very disrc-pfctful manner, if any (juestiona were asked h'.m, which had been put before, no repetitious al- lowed by the Doctor or the Judge, no motter how important I thought it to repeat the ijues- tions. One matter I thought very imprrtant. 1 had a meinorandutn from the bMieriirs books that the witness had been held to bail by one Cobuin, of Boston, for iJiOt). I had reason to believe it had been discharged out of money got from my client. On putting the questitiu to the witness respecting it he took the objec- tion himself that it hid nothing to do with the case. The learned Judge sustained him in it, and the evidence was shut out, and in the triumph of his position he was often very in- sulting in his answers; kept his head low, his hand about his mouth, and took tne advantage of his success by sneering at me in a most in- sulting manner, a great part of my cross-ex- amination of him,all observers must have seen it. Mr. Travis stroke to the court of it, and so did I, but it induced no reproof either from Dr. Tuck or from the learned Judge. Then came theDoctor's re-examination of this witness. The same leading manner was pursued and al- lowed as in direct examination, and the wit- ness was allowed tore|)fat on re-"X iii^iuatiou a< great p;wt of his dir. et examinatidu, and apart ot it matter, in my assurance, I had never cros-'-eijair.ined to at all, and lest my memory mav have f.iiltd me in any thing above stated, I appeal to ihe leained Judgn's own notes lor the trutti of what I have said upon the evi- oence of this witness on f;;,»iisui:vaou iuui cross-examination and re-exami nation. I re- member also that on S'veral occasions when anything came i.ut apparently very favorable to the plivhitif? the learned Judge was morer than usually jjarticilar, as I thought, in stop- ping and noting it down;, the foregoing cir- cumstauKu with a somewhat similar course, pursued with the plaiutiir'.-> other wi nesses as to eaaibiuatioii and cro>.s-examiuation, especially the learned judges improjvniy threatening to itop me, as stated in the letter, after his arbitrary time fixed for my duty in that pirt^cular, and his actually threatening, without any reason, tc take the c .aa out of n y haud.s, llie strict- ness which he held me to indirect examiuatioa of defendant's v/itneas — objectitjg several times himself, that 1 was leading the witness, and great strictness in re-e.-tamimuion together with the whole tenor of his charge vhtuiUy throw- ing the whol blani4 on the defence and npoii my cross-examinations, as the c;'.us« for taking up so much time, and his repeatedly disrespect- ful remarks to myself as stateil ui the letters named in the rule, and hi.s refusal to hear me, after the iuvitati )U of himself to h^ar me as ui my second letter in the rule s ated and my preparation for it in the most iiiij," rtant diiiy a coun.-Kd couM render m a cauic up):i o: j- c- tions a< stated in the pape s naiiifil in thh rule and he'eunio anuexeil marked {X.) [Not necessary to be here added. | All the fort-going calculated to prejudice ths defence vcry luuch and operat;ing strongly iu favor of the plaintilf, I did conclude the learned Judge, in his discretion or otherwise, assisted Dr. Tuck and the urosi'cution too much, at the expense of the defendant or for a fair trial. 1 ciunot say why it is, but at aty time I have l)eeu before Judge Wetiuoie when Dr. iuck was concerned, on the other side, he seemed, as I thought, to have unexpected ad- vantages of me before his Honor Judge Wt-t- more, somewhat similar to the foregoing state- :aent, though I may have been uiistakeu about it, and I have heard other members of the bar complain of t'le same thing as to their cases before the learned Judge. 9. I further say that Luckhart and his wife repeatedly complained to me iu the course of the trial: "Why, the Judge seems to be alto- gether against us," or words to the like eifect. ' 1 tried to make them think the contrary and that he would probably charge all right for them. 10. I further say that, opposite to the fore- >^ IN HE OAVID S. KEUIl. 5 fore. going rircunistiinces, prejudicial to the de- teiicf, Dr. Tuck was treated with every courtesy l)y the learned Judge, and seemed to huve matters all his owu way a.id shin.ug like the moriiiug suu; he felt himself in charge ot the Bench, aud the learned Judge's manner and ruling seemed very fivorab e to the plain- tilf aud against my cli-ut, and they appeared, as I thought, to be acting together for the plaintill", aud the learned Judge, whether from mistake or design, seemed ahly ussistmg the plaiutiir, aud I thouglit the Judge's thivaten- iu'j to interfere and stop me, in my duly as cjuu.-el, which he knew he had no legal right to do, was not only againat la'V but calculated to prejudice the defence aud to turn the scale in favor of the plaiutUt. */- 11. I further say that Judge Fisher, who was judge of the Divorce Cuurt, died during the trial, and very Sfon after his death, in the course of the same trial Judge Wetmore was appointed in his place, as :umor had it, at §6u0 per annum. There seemed no time be- tween Judge Fisher's death and the new ap- pointment to have corresponded about it by letter, aud having a tremendous opinion of the Y)^Ktnx'& political power with the present Gov- ernment '* to speak aud it was done," I did venture, to think that the Doctor's great pow- er, is also of my excellent friend the Deputy Minister, Mr. Bnrbidge tor plaintiff might have done the dfied by telegrams while thinking of the judge's kindness to them, and that there was in fact some billing and cooing concerning the appointment, and in lace that it might have I'lad some iiiiluence in tli case of Widett ^c Locishart I did strongly feel, at the time, ttiat tile appointment was uiiu-iuallj' t.uildeu, that if any salary §600 or preference were at- taeheU 10 the ollice (though Judge Fisher did it fiir nothing,) the i-euior judges, the Chief Justice aud Judge WeKion, shoul i, in common conitesy, have been consulted or uitihed b)' Judge Wetinore coucernirg their jxior rights, bifoie his getting the otlioe. I did complain in one ( f my letters that in objecting several times in a respectful way to the opposite coun- sel, the learned judge morn than once reply- ing to me u^ed the insulting epithet tiiat I was " snarling at the Counsel," at otlier times ordering me in an insulting manner to " liold uiv tongue, lie wouiu nut hear me," aud finally stof)i)ing me altogether in my most imp.jrtaut duties as Counsel, by which I entirely with- drew from the cause never to return to it again, aud thi>* was all true; I say further that I sta- ted in my first letter that the learned judge's manner was arbitrary, tyrannical and olfensivv:^ to me, and in breach of my rights as counsel, aud I appeal to the foregoing fact^ aud those stated in my first letter to prove it. I applied to Mr. Lockhart aud Mr. Travis that I might leave the cause, but they w.uld not consent, the learned Judge's manner was so offensive to me I could barely stand it. His Honor's threaieuing to stop my cross-examinatiou against law,iu St John, and his actually doing it in Dalhouaie occurred, vs I have stated them in my first letter. I referred in that letter to his manner of treating Mr. Travis, which I thouglit was very insulting, and in the course of it he, refening without anything to call it forth liut api)ai'eut angry feelings, about some letter or review which Mr. Travis had put ia the papers which I understood related to one of the learned judges' judgments. [1 had never heard of it till then and by the learned judge himseli. I I thought he spOKC of it with an angry and malicious feeling, which seemed to actuate him towards Mr. Travis, aud was so far hurtful to the defendant's defence. 13. I say that I did refer, in my first letter, to the learned judge's manner and expressions in court, which 1 thought derogatory to the dignity of the bench. I am sure the public will join with me iu that sentiment. I think it very unfortunate that the learned judge does noG see it so himself. The public see it and extensively talk of it, and I am quite sure that ttiis honorable court cannot be ignorant of nor fail to regret it, and I believe it very injurious to the character of the bench, that it dots great public harm, aud I trust the learned judge will see the wisdom of leaving it otf, otherwise I feel there will be a general outburst of indigna- tion about it. As one of the people, I have an interest in this important subject. As among the oldest o! the bar I feel a very deep interest in the dignity and well-being of the bench and bar, aj", also, for the public benefit. 1 trutt that vvliatever I may have s dd in my letters on the .subject referred to, a;id whatever may be my own fate iu this partis ubir, my observations on the sul juct will re.iult iu good. 14. I say that I made .'•ome allusion in my hfst letter to His Honor's love of politics. 1 may be wrong in my opinion, but I think lam not, and it i-i my belief that so soon as a gen- tleman is appointed t>,' the bench he should bid an everlasting farewell to imlitics and political cronies and uecermiue, like that admiiable Chief Justice, Sir John Holt, to leave them for ever, aud be thedigniiird, impartial and patient servant of the b.-uch for truly administering justice between man aud man. He shoulil have no other "axe to grind," or olFices to seek for self or relatives, than what belongs to that most exalted aud most honorable situation of doing sound aud even-handed justice to eve^y suitor. 15. I say that, if I have gone over too much ground on this occasion, it is because I am groping in the uark as to what I am charged with. Can it be possible that this honorable court would sanction or appiove, in any judge in a different court, the conduct herein before set forth? I know it would not. Can it be possiole that 1 am guilty of a contempt towards this honorable court for remarking on matters occurring iu another court which I know, that this hon. rable court (no party to the wrong) would utterly condemn? I IS THE SUPREME COURT. verily believe not. The matters of my letters did not hippen in a corner, hut the suit was before the public in St. John forty days; they fully saw it and formed their own opinions, and never did I pnt my hand to anything in my life tliat seemed to meet with such univer- sal approbation, as the letters mentioned in the rule yisi. Are the public so blind, so ig- norant, or so wicked, as to universally approve a matter which this honorable court should ut- terly condemn? I think not. Judge Wet- more was down in St. John just before the sitting of Judge King'.^ court in March. Ku- nior had it. His Honor came down to indict me. That would be very fair, to take action where the whole matter occurred. So he has been hero several days during Judge Weldon's court. If I have wronged him civilly or crim- inally, and the juries of my country say so, I will bow with all submission to their verdict. But I want to be treated fairly, and whatever course Judge Wetmore may choose to pursue, he may feel assured I am not his enemy. I have no malice, either legal, moral or natural, towards him, and, as the Great Judge of all the earth is witness, would sooner do him gord than harm, and I would be sorry to be compelled to take any step, on my own behalf, to do t im injury. I am convinced, that as ho must observe the curreut ot public opiuiou on thiH occasion, he has wisdom enough to u a turely reilect upon it. 1 further say, as before, that the matters stated in th- l^tttrs named in the rule nisi, are »iot iihelous, scandalous or contemptuous, as alleged, but are true in substance aud fact; were written without any malice or improper motive whatever, on subjects occuriing in courts of justice and pertaining to the public justice of this Province, wherein I and my brethren of the bar, as also the public, had a deep intetest, were addressed to the Editor, Mr. Elder, my representative of St. John in the liegislature, then in session, which alone had the power of dealing with such subjects, and, conceiving the pre-^s, the best corrector of ttie matters complained of, as also the best means of making publicly known the suggested amendments, 1 jmblished such letters in the St. John Daily Telegraph, with the fair and honest purpose of accomplishing important ends therein set out for the public benefit in the better administration of justice, and the same were lawful and privileged publications. 17. I further say that, fully aliv; to the rectitude of my course,and to the publia neces- sity of pursuing it, and with the highest regard for the well being of this honorable court, by the laws of the land I am guilty of no con- tempt towards it. David S. Kerr. Sworn to in the City of Saint John, the twenty-sixth day of May, A. D. 1881, be- fore me, Jeremiah Travis, A Commissioner, etc., Supreme Court. Thr affidavit of Jeremiah Travis was then put in, but in reading it partly through it apt eared that Mr. Travis had sworn to his belief unfavorable to Judge Wetmore from certain appearances. [King, J. — You had better go to Parliament and impeach Judge Wetmore at once. I think the affidavit should not be read.] Mr. Kerr — In the affidavit Mr. Travis only gives his opinion in apjyearancea as he saw them. The Court determined not to hear this affi- davit. Then an affidavit of J. C. Barberie, Esq., M. P. P., of Restigouche, barrister, confirm- ing a statement in one of the letters, that Judee Wetmore did, at the Dalhousie Circuit in 1877, tell the jury if they brought in a ver- dict contrary to his charge he would not receive it and that such a verdict would be perjury in them, or words to the like efTect, was read. Also two several affidavits of David S. Kerr, Q. C, as to the organizing of this Court iu 1784. Mr, Kerr then proceeded to argue against the procedure as follows: — 1st. The application to this hocorable Court for an attachment if in an emergency, any cas>i could arise to make such a proceeding just fi. able, is too late as regards the alleged coute' pt in this case. Attachment proceedings form no part of the general laws of the land, nor the ordinary modes of procedure therein, but are directly opposed to them, depriving the supposed of- fender of the safety and benefi , of ordinary process, of his jurie.s, and of the best litierties of the sulijfCt. Attachment law is peculiar to courts alone, its only reason is the tiiere iieces- sity of using them — Necessitas facet licitum quod alias non est licitum— a Ufcessity which forces a departure from the ordinary process or procedure at law, by reason of extreme wr(7(;7»C2/, necessitas, qu"d coget, defendit, a quickness of remedy above all others, an immcdiateness for removing ohstructions of court }iroceedingit, and to speed t^exa. in the proper execution of jus- tice, where the ordinary process would be wholly abortive. But no obstruction or ^.ice.: contempt existing, the occasion of cont:i>^'^. long 2)ast, cessante ratio Icgis cessat ipsa lex-- here the reason tvholly fails for depriviri^ th, supposed offender of his ordinary rights and modes of defence, there being no existing neces- ity for resorting to the extre im process of attach- ment, no face of contempt or existing obstruc- tion, and the tnne long passed by. The let- ters complained of, published the 22nd and 24th J^ebruary last, nothing iu the intermedi- ate time to hindei an ordinary information be- fore a magistrate, summons or warrant. The Circuit Court, in March sitting, in St. John, where the matter happened, and continuing nearly a month, yet no proceedings attempted till the 23 rd of April, the last day of Easter Term, two months after publication, and only IN RE DAVID S. KERR. agaiast I apparently to deprive the supposed offender of both his juries. With the fli)parent purpose of intlictiDg vengeance by otffnded accUHers, I hope it was not «o intended by this honorable Court and that they will confirm rne that this ex- treme process, in vmo of t/tc foregoing, is quite too late in time. No precedent can be found for it in this court. 2nd. There is no relator, complainant or in> formunt, appearing by the proceeding-*, nor any warrant, or summons, or charge to anttwer to, before a Justice or other magistrate, nor any foundation for such proceedings, according to the Ltws of the land, nor anything to atl'ord jirotection or remedy, for the proposed oirnuder, in case of ulterior proceedings in this matter. The Great Charter of Liberties, chap. 29, having it that "no freeman shull be taken or imprisoned, or be any otherwise destroyed, nor will we not pass apon him nor condemn him, but by lawful judgment ot his peers or by the law of the land," that is (say the old statutes) without being brought in to answer, by due process of the common law — 28 Ed. 3, ch. 3, 2 inst. 50 — by presentment before Justices or thing of record, or by due process, or by writs original according to the old law of the land — 28 Ed., 3; 37 Ed. 3, ch. 8 ; 42 Ed. 3, ch. 3 , and if any judgment be given, contrary to auy of the points of the Great Charter, etc., it shall be undone and holden for naught; 28 Ed., 1 ch., 1 ; 2 iijft. 50, vet optosite to the forego- ing, as pointed out in this objection — no 'pro- secutor. I need not argue how serious this objection is, but only refer to .'dl precedents, criminal and civil, ordinary and smnmary, where a complainant, informant, relator or ap- plicant appears. The very book the Attorney General cited from, 41 Upper C. Q. B. 1, Reg. vs. Wilkinson, page 3, the Honorable John Simpson, Senator of Canada, in the several applications ia applicant, pages 3 and 10, and John A. Wilkinson is alleged offender, and in 2)age 25 of the same book Harrison, C. J., speaks of the complainant or relator there aa the all important man in the proceedings, and in Hill vs. Weldon, 3 Kerr, at paj^e 57, Chip- man Chief Justice says: "ReftTfUce has been nimie to the power exercised by the courts of justice, but it will be remembered that 'no ar- rest would be ordered for contempt, not in the face of the court icithout a charge on oath; and for malicious and groundless arrests or prose- cutiims, actions may be maintained and redress afforded." That is all powerful for me, this alleged contompt, not committed in the face of this or anoher court, uor in this court at all — but of a single judge in an- other court, who persoimlly hwwing all the facts and circumstances before him, does not choose to complain. What can this court against his silence do in the matter? If he does complain, that must appear in the regular way accord- ing to the high auth( rity I have mentioned of this very cotirt, and be complainant in this matter, aa in all other cases, and that I may answer the complaint; and if he has complain- ed unjustly again^tt me, as I should contend he would, I could nave my action on the case against him for a groundless prosecution, aa ia Vincent vs. West, 1 Hannay 290. According, then, to abundant au.horitiea in this court, and every court, there must be a relator, or complainaLt, foi the reason &ad justice of the thing. Being, however, wholly absent in thin proceeding, it seems entirely defective; but ic IS said in the rule, "upon motion of the At- torney General," what bus the Attorney Gen. erdl to do with the matter? without a com- plainant or relator, and without evidence, any more than the youngest member of the bar. It is true that the Attorney General by virtue of his office in certain cases of sedition or bias- phemous libels affecting the Government, or something, touching the whole community, — or a large body of per ons, — may, for our Sov- ereign Lady the Queen, file an ex officio infor- mation. But even there he is circumscribed in his powers, as may be seen in the Attorney General, vs. the Great Enstern R. Co., L. R. 11 Chancery Diviiion 449, 483, 484, and cannot allow his name to be used, in purely private cases. But here the At'orney General neither moves on belutlf of our Sovereign Lady the Queen, nor by criminal information at all, and in the absence of these has no more right to make this motion to the c urt — without a pro- secutor and without the necessary evidence which a prosecutor or relator should furnish — than the humblest member of this Bar. Now looking at the libelous matter, irent down to the St. John papers, and published to hun- dreds of thousands of people, that I had been guilty of a contempt of this honorable Court, for scandalously, calumniating, vilifying and reflecting on Judge Wetmere — that is, guilty of malice, and ivithout reasonable or probable cause, aad all this 'witlwut a particle of proof that the letters were 'written or not ''vritten with the purpose therein expressed. This I afterwards received iu rule, greatly modified in its terms, but amouutiug to much the same thing. If 1 .should be successful in this mat- ter, (which, according to law, if I can uuder- staod anything f must be,) what would there be to pievent me from bringing (what I have not the slightest idea of doing at present) an action lor libel and malicious prosecution against John J. Eraser, Esq., for moving the court without authority /rom any complainant, nor any evidence to wa-rant it, and maliciously obtaining, in the shape of a rule nisi, a scan- dalous libel against me without any rea-onable or probable cause for it? What would he de- fend upon? So far as the papers on file are concerned, I can see no legal justifi- cation lor so serious a wrong of the libel,and expense which he has put upon me, and all this might arise, while the real cause of the motion is not there, but keeping in the back ground. I think that the absence of 8 IN TflR Sl-PKKMK (;orUT. liv' ' the complainatJt or applicants name to the jrro- ceding in fatal to tkitt application. 3ril. No aHiilavit or other proof dnnying tlie fact.H or truth of the matters stated in the al- leged letters leferred to. This feems a very decisive objeetion against this proceodiui,', as spi'ciiilly iij)i)ears by the authorities, cited by the Attorney General. First of all, the proceedings for libel, as I shall show, must 1 e set out in words in the in- dictment and he substantiilly negatived to sup- port tlie charge in it, Reg vs. Bradiaugh L llep. 3,Q. 15. D., G07 Brett L. J., and as an indict- ment submitted to a gra id jury must contain all the necessary facts, on its own face to show the sufhciency of the charge, so when the party applies to the court, for a criminal inform >tion, depriving the opposite party of a gra'd jury, clear proof to the court, as would prove the charge and warrant a jury in finding a true bill— must fully explain and nei^ative all the statements in the alleged libel. See several examples of this in the Honorable John Simp- son's, Senator of Canad t, affidavit and the aflidavits of several parties confirming liim, page 3 in Reg. Wilkin.son and pages 6, 7, 8, 9, 10; then the judgment, Harri.son, C. J., on pages 2.5, 29, 30. ' The result being that the apfplication failed for so much as was not fully explained and negatived and succeeded for so much as was explicitly answered and denied. If then it be necessary in explainii l; and negi- tiving expres.sly all the facts alleged in the libel, on criminal information, for the rea- sons in the books bt cause such a pro- ceeding deprives a party of his grand jury, the rea<*on is much enhanced for such proof, in a proceeding like this, which deprivts a party of both his Junes, the facts in the letters and the object in jmblishing them as stated, stand ad- mitted, till disjiroved, and on what ground this honorable Court granted a rule nisi for an attachment on account of writing the letters which, at present, stand as true and lawful publications, I cannot understand— with no other proof than as a fair report of proceedings in a court of justice, concerning the wric r's interest and the public benefit. Is there any known privilege or exemption, which relieves a judge, because h" is a judge? If he supposes he has been wronged to adduce the necessary proof as by law he administers before this Court, to s-how, if he can, those letters false, unlawful or libelous; What, to exempt him more than any other person, from the Queen downwards, to go before the ordinary tribunals of the country, and prove the cri>»'nal •- barge if it exists, or make the necessary affidavit which is imperatively required where a grand jury is to be set aside? I know of no law, nor reason, to hinder, excuse or privilege a judge in this particular, nor to be ashamed or to set himself above the laws of his country more than to excuse the Honorable Mr. Simpson, Senator of Canada, nor any other man in high life, or low life, or to admit his case as proved, which is not so. It was upon this assumption in 1313, by the House of Assembly (hat it was b neath their dignity to take the ordinary remedy for a libel, not in the face of the House, but that they should themselves impiison the libeller, and which produced the very able judgement of this honorable Court in Hill vs. Weldon k Gardi'U, holding an opposite view, and that the House of Assembly must proceed, like this Court for contempts not committed in the face of the Court, by taking their remedy by in- formation and warrant ln-foiv Justices in the ordinary tribunals ot the country— xee Hill vs. Weldon k Garden, 3 Kerr, at page 57. This application then v/holly destitute of any evi- dence of the falsity, malice or legal wrong of tho.se letters, I think must fail on th's ground also 4th. No proceedings before a Grand Jury, indictment or rule nisi of court, o. otherwise, setting out in irords, as by law required, any alleged lil)el or matter scandalously and con- temptuously rellecling, as in the rule nisi ex- pressed, with the tendency therein stateil, nor any way open by which the proposed otfeuder may meet the chargi! as a whole, by pleading or otherwise, or have the benefit as of a trial by a court and jury of the country, or have the sub- sequent benefit of acquittal or conviction in cfise of another proceeding for the same sup- po ed offence, nor any. way by which to take the opinion of this honorable Court or the Court of Appeal, by demurrer, or by motion in arrc'st of ju'lgnient, as to the sufficiency of the charge or matters complained of. According to all authoriti<^s any matter of libel or thing to be legally coUiplaiued of must b" S' t out in U'ords fi>r the reasons stated in the fourth objection. This subject (1) has been so ably handled aud adjmig.'d of latf iu Hrath. No evidence whatever before this hon- orable Court, as to the facts and circumstances IN RE DAVID 8. KERR. )w life, or not so. IS 13, by i I) iieath enindy for but that m libeller, Uilijeinent Weldon k and that I, like this 111 tlie face pdy by in- icea in the -e Hill VH. 57. Thia any evi- wronj^ of li'S ground rand Jury, otherwise, uired, any aud eon- lie nisi ex- stated, nor d otfi'uder (doadingor I trial by a ve the sub- nviction in f same sup- ich ti) take r the Court n in arrest the charge matter of t-d of must stated iu I) has been of l.-ite in I., li-p. plain for (say Bram- tl:e eharjie y tli'i irord* be seli'C'ed aay aiis'ver jaiiie objf-ct s of closely Icgraph, in tVetmore is ivhieh they can any iroceedings judgment art, or how y General's , 41 IJ. C. 3 libfds all law lo be appears to ?. this hon- cumstanceB out of which the alleyed libels or scandalous or coiiteUiyituous matters arose, except by the alleged letters themselves, nor any matter whatever coucerDing the charge, of which this houoralde Court can take judicial notice. In 41 U. C. Q. B 18, the counsel of the party coming for a criminal information, or the peisou who complains ot being libelled, must pick oiu what he believes to be the libel, and when he comes into Cnurt to nsk for the extraordinary remedy he must prove his inno- cence ol every single iDiputation made against him before the information will be granted. Broom 586 8, Keg. vs. Ha'^well, 1 Do'.g 387; Keg. V Wright, 2 Chitty 1P2; Keg. v Plim- soU, 12 u. J. N. S. 2'27; Keg, v. Taylor, 1 jurist f)3. Mr. Simpson does not, therefore, come into Court with clean hands aud is not entitled to the remedy which he a^ked, says Mr. Wilkinson's counsel. Here the def ndant admitted the publication ami did not ortVr the Court any excus". or apology, but because Mr. Simpson did not spec fically prove his innocence iu specific tilings to that extent, failed. Harrison Chief J., p 25. •'It is t^rule not to grant uriminal information without au exculpatory affidavit from the party complaining, Reg, v. Haswell, 1 D. 387 — a party must deny the charge, specifically, a <^- nial, full, clear and explicit, and authorities there cited." An information discretionary — Keg. v. Rob- inson, 1 N. B. 541, page 29 — the Court exer- cises a considerable deal of discretion — first to see if the circumstances aie such, tvhether the relator or informer lias been himself free from, blame, even though it would not justify the de- fendant in making the accusation. Second, to see whether the offence is of such magnitude that it would be proper for the Court to interfere. Page 29 — Both these things have to be con- sidered, and the Court will not make its pro- cess of any value uuiesa ch< y consiileied them and exercised a good deal of discretion — not merely in saying that there is legal evidence of the offence having been committed, but also excrdsing their discretion, as men of the tvorld, I may say, in judging whether there is reason for a criminal information or not, (per Blackburn J. in the Queeu vs. PiimsoU). How then, if all the facts sec forth in the letters and in the aflidavit, of what the Judge did at the trial? Wap the Judge then free from wrong, as detailed in the letter- and affidavit? Page 30: He ought to make it appear not only that he is free from blamo but that his conduct is such that there is no color for tlie imputations cast upion him, per Archibald J., in Keg. v. Angers, 28 L. J. N. S. 634, 12 Cox 407. This Court has eyes to see a judgment they have delivered themselves in this Court, and to take judicial notice of all the circum- stances connected therewith, and for any libel against that judgment on proof of publication they have all the facts complete, as in re Brown, but this Court have not all-seeing eyes to see 100 miles off, nor take judicial no- tice of facts and circumstances there occurring and so need proof thereof in the absence of any evidence before the Court. This objection seems also death to this proceeding. fith. If anv supposed libels or publications I reflecting on Mi. justice Wetmore, as alleged ! in the rule nisi, they related to the proceed irgs I in other courts, aud not in this honorable Court. Tliere is no case to be foiiid like this pro- posed by the Attorney General. This honor- able Couit to punish me for what happened m another Cou.t, as I am informed he pointed out, was what I said of his proceeoof in the St. John Court and Restigouche Court, and which the Judge himself does not deny or complain of. No one, I think, ever heard be- fore of such a proposition for law. I have never seen or heard such a precedent. When I .say that Judge Wetmore has never complain- ed of such, I say there is no evidence of it be- fore the Court, and it cannot be evidenced by private conversation, but in the proper way onlv — through some relator — by seme legal evidence appearing in writing, according to the practice of thir honorable Court, which I can see and answer to. The nearest that I can see to a'.y thing bearing on the subject is the case ex parte Tellinghast, which I observed in an American note, to my American edition of Bacon Abr. JV, by Bouvicr, in 10 vols., under the "Title" B , title "attachment," in 4, Peters' re- ports, 108. This book is here. The case which concerned a contempt committed in a Circuit Court of U. States, adjudged byChiaf Justice Marshall, that the Supreme Court of the United States could not take notice of it. (The Attorney General here being asked if he could produce any case that for matters occiir- rin_' on the trial of a civil suit at nisi jtrius, this Court on the Crown side couUl interfere by attachment for contempt, and Rex vs. Jol- lill'ee, 4 T Rep 285 was mentioned by him). This case is from a criminal information and fully supports my contention in various ways. The Judge virtually holds his Court under a com- mission of 7iwi;)ri«s, authori-ed by a statute of Ed. 1, none of the Records or Proceed- ing-t ni nisi prius, are returned into the Crown office belonging to this Court and are wholly foreign to the criminal proceedings of the King's Bench or the branch for criminal pur- poses. (See Wells vs. Abrahams, L. R 7 Q. B, 554) As all this movement is confined to Mr. Justice Wetmore as to what was publish- ed of him at the nisi prius civil cases in St. John and Restigouche, the above objection must, I think, prove fatal to this proceeding. 7th. By the constitution and practice of this honorable court, it has no power to proceed by attachment ifor any alleged contempts, unless committed in the face of the court itself, or for actual obstructions to its proceedings in the course of administering justice. . 10 IN TIIK SLPRKMK COURT. '•r i !•'( I y / This court hns a constitution and practicp of its owu, guided by the printiides ol the com- nion law, quite apart and iinffttered by any other courts or decisions, and by Huch onsti- tution and practice wo must be guided innscer- tainiug the pnwer coiniiinuicalfnl to it on its original creation and practice thereunder. A Uoyal Commission, by letters patent under the great seal with (nil instruction^, wus made out by the authority of His late Majesty Kmg George t.he Third, and given to Sir Thomas Carleton, bearing date the It'th July, 1784, with full powers by and with \ he advice and consent ol his council, to erect a sp' odic por- tion of th' Province of Nova 3rotia into a neparate province, to be called the Province of New Brunswick, witii power to constitute Courts of Judicature, and to do all things needful for the complete f quipment ot N -w Brnnswick as a separate province. The power of constituting Courts of Judicature is to be found in the Royal Commission, and is as fol- lows: — •'And we do by these presents give and grant unto you the said Thomas Carleton, lull power and authority, with the advice and con- sent of your said council, to erect, constitute and establish such and so many Courts of Ju- dicature and Public Ju tice, within our said Province, as you and they shall think fit and necessary for the hearing and determining of all causes, as well criminal as civil, accoraing to law and equity, and for awarding executiou thereupon, with all reasonable and necessary powers, authoriLies, fees and privileges belong ing thereunto." Accordingly the Governor, with the advice and consent of his Council, on the 27th day of November, 1784, established this court in the following words, as per minute of Council: — "Present, His Excellency t;'e Governor, read an ordinance of the Governor establishing stated terms for holding the Supreme Court of Judicature in this Province. Advised and consented that the said ordinance be this day published." I subject's, grint tua* all reasonable and neces- sary powers, for working it are 'Deluded. This [ implication, how ver, is not so in a crowu grant, which must always speak with certainty, for li crown craut enures to no other intent, '■ thin that expressed in the uraut. The words I therefore expressed in the grant exclude any j other meaning than the spec.ifi", words imports, \ cxprcs»io uniuH cut exclunio aUcrius. Only rea- I sonable and necessary powers and authorities, these being specifically meant, excluding all others. The distinction between removing actUiil obstructions and going on to ai 'judge and punish fur them, is well taken in Doyle vs. Faulkner (House of Assembly Dominica) 4 M^ore P. C N. S 203, 219, 221, L Ueps. 1 P. C. 328 and Keilly vs Carson 4 Moore P. C. C. Certified. F. A. H. Stratton, C. E. C. And His Excellency appointed Georgia D. Ludlow, Esq., Chief Justice and Mr. Allen, Mr. Putnam and Mr. UpJiam puisne judges of tb'! Court. The first sitting of this court being in the month of Feb., 1785, in St. John, and wh'ch has ever since continued recognized and confirmed by numerous acts of the Legislature, with the same power.«, no way altered by the Act of Confederation or otherwise, that is, with all reasonable and necessary powers and au- thorities for working efficiently, according to the couise of the common law. The words reasonable and necess^iry powers ne d not to be added in a subject's grant, as the law would imply them. For Qtcando lex, aliquis aliquid, concedit concedcre videtur ct id sine quo res ipsa esse Twn 'potuit&nA therefore implied in a 63, upon which last cited cases Hill vs. Wei- don 3 Kerr 1, was determined. This court of course, has power to adjudge nud punish for contempts commi ted in its own face,asa most reasonable and nece.ssnry power, for maintain- ing order and decency in it, and equally neces- sary IS the power which it clearly has for re- moving and punishing actual obstruction, other- wise tt)e efficient ai-.tion of the court might be entirely stopped or defeated, but not su in the absence of any reason for it. Not .so in the absence of any faced contempts or actual ob- structions; not so as contraiy to the charter and the usual and regular course of law. No information, summons, warrant or complaint here; no indictment, specified charge, named olfence, or jury allowed. Ordering a partv un- der these circumstances for a fancied libel on one of their own body, to appear before this court as revenging judges and parties and to impose sentence and punishment upju their offeuiling victim by fine and iiuprisonmeut, though every appliance is around for a disinterested judge, and a regular and iligifi- ed course of law, is wh'dly uun^asonable, un- necessary and uijust and therefore no such pow?r is granted to this court to proceed for a contem|it in this case; so much from what ap- pears by the creation of the court itself. A better view yet remains, for in the Queen vs. Appleby Pvrt Rep 397, 1840,before the court to relieve the defendant from a recoguiztuce. An important ditt'erenco arc ) between Chip- niHU, C. J., and Parker, J., as to whether the case was sufficiently brought within 33 Henry VIII, as to relieving the defendant. The powers of the court were then coi.'sitierably scrutinized and in 1842, in the Attorney General vs Baillie, 1 Kerr, R'^ports 443. The Attorney General having filed a bill against the defendant on the Equity side of the Ex- chequer, the question was raised and fully argued whether by the constitution of this Court it had any juri.sdiction like the Ex- chequer Court of England, to proceed as sug- gested, and the commission to the first C. J. was referred to in the argument as to the power and the Court, after a very lull consideration of the matter, determined that no such power IN RK PAVII) S. KKIIU. 11 had been communicatpd to thl« Conrt and that it had DO jurifldiction. In thtt jiulg-iient which was) dolivered by Chipinan, C. J , 8 closely considerfid the power given by the commisHiou to George D. Ludlow, Ksq , the lir>t Chief ' Justice of this Court, o>i8frvij)g that all the ^ cointnifiRionH sincH were substantially like it, , "To hear, try aud determine all pleas whatso- | ever, civil, criminal and mixed, according t'> the laws, statutes and cvistoniH of that pi»rt of i our Kingdom of Great Britain called England ] nnd the laws of our said Province of New | Brunswick not being repugnant thereunto aud \ to award execution," etc. That the wonls : •'hear, try and determine" all j)lea8 whatsoever civil, criminal and mix' d and to award execu- 1 tion" conveyed only common law i)ow>rHto try with a couit and jury and imported pro- ceedings according to the course of the common liiw only; hence the argument is plain that if this hon(jrable Court can hear, try and determine only by the course of the som- mnn law, which is by information before a justice, summons or warrant, criminal inform- ation, presentment or inilictinent and by jury, this honorable Courc cannot try the supposed iibel directly contrary to the course of the common law and is without jurisdiction V to try in this case without jury. I respectfully submit it has uo power to do it. Again as to t. e practice of this Court, the power to com- mit for a contempt of this Court came very fully up a few years a'ter the last cited ca«e in Hill vs. "Weldon and another (House of As- sembly catie), 3 Kerr, Rep. 1, which was for imprisoning the plaintiff, the printer and pub- Usher of a pap^r in Fredericton, called the L"ya/isf, in which the Housf of A—einSly ailei/cd the plain'iff hal i uMished a most niaii'-ioas and defamatory libel against them as to th'ir proceedings in the House. The case was very elaborately argued and the Court gave the counsel on either side a great deal of credit. It was a nong other things Hrt;ued for the plaintifT that by the great charter of British liberty, chap. 29, confirmed by 30 or 40 Acts of Parliament, it was declared that no man should be taken or imprisont-d or otherwise destroyed but by the lawful judgnit nt of his peers or the laws of the land, that is, without being brought in to answer by due process of the common law,28, Ed. 3, chap 3 2 lust. 50, by present merit before Ju.->t Cfs or thing of record, or by due process, or bv writ, original, according; to the old law of the land, 28 Ed. 3, ch. 3, 37 Ed. 3, .h. 8, 42 Ed. 3, ch. 3, and if any judgment be given contrary to the points of the great charter, it shall be undone and holden for caught, 28 Ei., 1st ch. 1. It was, among other things, contfuded for the defendants that this Court could imprison as for a contempt, in publish- in;r a libel reflecting upon it and its proceed- ings, and so ought the House of Assembly to exercise the like power; but the Court, who, from their previous investigations and great dfllibera ion.<) in this case, had full knowledcp of their powers and the practice of theCimrt.tt page .17 of the report, answered the defendants' argument thus; "llefereuce has been made to the power exercised by courts of justice, but it will be remembered that no arrest would be ordered for contempt not in the face of the Court, without a charge on o.ith, and lor mali- cious and groundless arrests or prosecutions actions may be maintained aud reoress atford- ed." This great authority of this Court itself seems to close up the whole matter against the present proceeding, and which could only bo in a proceeding on oath by the due course of law. One more authority against this Star ChhTnber case, in 2 Campbell's Lives of the Chief .'usticas of England, p. 13 in the life of Chief Justice Scroggs, a very bad man, but from h'.s shocking tyranny and of taking the law into his own hands to ill-treat su]iposed oiienders, the authority is a very strong one, for even Scroggs did not venture to proceed for the contempt in the way now offered, but proceeded regularly according to the old law of the land. His trial of Sir Georae Wake- in n giving great dissatisfaction to the public he was assailed next morning by many ballads and libels, and it seems to have enraged him very much, but instead of sending for the libel- lers and publishers and trying them himself without a jury, on the first day of the follow- ing term he bound over, in open court, the authors and printers and sing'^rs of some of the worst of the libels, to take their trial in the regular way before the Court and jury. That was more than two hundred years ago, in the worst of times for the violation of a subject's right. If such was the law and practice of the King'.NBench,then how hasit become changed to warrant now the present pn'ceedings? Hence, by the foregoing law,constitution and practice, thi- honorable Court seems to have no legal power whatever to proceed to try this attach- ment or ch>trge as now b fore them. In the cases cited on moving, by the Attor- ney General, from the various Courts of the world, he assumed that the powers of the Courts in which such cases occurred vvere iden- tical with tho.se of this Court. But 1st. Were such assumption true the cases do not help him. They all confirm my [)08ition, save one, j (MeDermott case), being for contempts in the ! face of the Court or for actual obstr'iction and I within the principle contended for in the I seventh objection. Some of them indeed do i } ook on «'scandalizing the Court," etc., as if I to give judicial dignity of doubtful proceedinj;s ' a ride; the incidents cited being of clear oo- \ s. ructions in themselves, sufficient to impera- j tively invoke the quickest power of the Court where the ordinary power would be wholly ! useless for the remedy. i Leshmore Charleton's case, of a barrister and I member of Parliament, who appeared before the master of the Conrt and threatened him,in order to improperly induce him to alter his ll> IN TMi: Sdl'UKMK COCKT. opinion in the fiiMchnrKe of his officinl 'C,t to the charj:;i\ He Waliace.waHan in- Rultinj< letter adtiressid and sent hy the writer to the Chief Justipe, fellecting upon him and the aduiiuiHtration of justice in nis Court and therefore a contempt in the face of the Court, but judfjnient was reversed So with Ke Pol- lard and the jud<,'rnent reversed, by the recom- mendation of the judicial committee, Sn with Ke Ilamsay of L')wer Canada, McDermott vs. Beaumont, where scandalizing the Court of British Guiaia was the single charge, and threatening Judge Crosby publishing it in the Colonint newspaper. And the Attorney General of that possession for McDermott, though the Court invited and gave him several opportuni- ties to come forth with his objections, declin- ed, contending that the Court was not one of recoid and the proceedings were irregular, th objection whether the communication in the paper was such a contempt as came within the power of the Court to punish was never argued nor even taken, and the whole casf, after a re. f.'r>'ni'e to various sta'utes mid anthoritifs, ni- tiniately tu'ned before the judiciul cominittee on the Court being a Court of record. 'I'he only othir case quofed against me is Rn Brown, which occurred in K-g. va. Wilkinson, 41 U. C, Q. B. 48, for alleged cont'Mopt by r 'marks in the Toronto Olohc, on the judgment of the court in Keg vs. Wilkinson for jirejudicmg Mr. Wilkinson in his expected trial of the ciiiiiual information — a dual chargn of scan- dalizing the court and Mr. Justice Wilson, and also for obstruction. This case is shocking for injustice a- appears by its details, beginning at a most unnecessary departure made by Mr. Justice Wilson in his giving his judgment in Reg. vs. Wilkinson, on the criminal informa- tion suit, to assault the character of Mr. Simp- son and judicially obstr.ict and defeat him on the trial of hia criminal intormation case, and aSsail Mr. Brown, a party not before the court, who could not answer for himself, and which provoked the well supported grounds, which I think he had for writing as he did. This was a regular son assault demesne case. The ceurt undertook to punish, though purely oc- casioned by its own wrong. I whcUy disagree with the proceeding against Mr. Brown, and I look upon the judgmeiit of Harrison, C. J , in that matter and the authorities cited by him as belonging to the worst age of tyrants, most dang'TouM to the saffty and well f)pi»ig of juilgeH.teinling t'l foster corruption an I wholly unsuiteil l) rule granted, this is, on the original jurisdic- tion, a criminal court and out of che Crown otiice. 9ih. No libel nor any legal I'UVnce whafevir, charged, stated or lamu-d, in the ride nisi. Tlie mi'St important iioint I wihh to consider is upon the facts stated in the two letters and atHii'ivits, taking tbeni to be true, am I guilty of any contempt of this cuuri? In Sturkie ou Libei, p. .3, 4 Ed., by Folkhard, 1875, Bac. Abr. It is ilefiued to be a malicious defamation, expressed either in printing or writing, etc , tending either to blacken the memory of one who is dead or the reputation of one wliu is alive, and thereby ex- poiiog him, to public hatred, contempt and ridicule. Libel — Hawkins, P. C. — A malicious defa- mation expressed either in printing or writ- ing. Libel — Sir Wm, Blackstone — By printed or written libels, pictures, signs and the like, which set a man in an odious or lidiculous light, and thereby diminish his reputation. Form of libel— Arch, C. E, 915-Contriv. ing, unlawfully, wickedly and maliciously, in- tending to injure, vilify and prejudice one, &c., &c., and to bring him, &c., unlawfully, wick- edly and ma iciously, did write and publish, etc., a false, scandalous, malicious and defama- tory libel (here set out the words.) He, the 8 vid— well knowing the said defamatory libel to be false. IN in: DAV'in h. kkuu. 13 liel»i^» of . I wliolly wt' livts. iiloj^'Y hi'. {.ill iix to |>li itfd to of ./ It la illltM|,'lMl. r C'lmiii- hunilred cii I'ourtH Attoriii'y »• written lionon hie c powcrx, ttri'ti'hffi, I't in liiw, 'hilt may tlu' I>re. ('hiike my iition and icfl of this ■.It |)roceed , Jutlye in ler Uo\irt, idiciiil uo- same (is lat the hI- ler Gourt, Ba8 by th») jurisciic- le Crown whatevi r, ; n>,s>. consider etters and n I f^uilty Ed., by fd to be a either in eithiT to ead or the hereby ex- empt and nous defa- jg or writ- printed or 1 the like, lidiculoua itation. Contriv- jiously, in- ;e one, &c., ully, wick- publiah, od defania- He, the ;ory libel to tf what IH cumpluinnd of as liheloui in my lei KffH were really falne and nmluiionH, I mif^ht veiy jiixtly ''e charKed ,w iu the rule and in the t>re oin^ form for piiljlmliin;^ divers mat- ters as therein set forth, HiMiidiiloiiHly and eon- lemiilumHly lellectinj,' mi Mr. Justic;e Wet- niore, l>ul miiipose all ihiiig.s st itt'il in tlie lut- 1( r Wire aetualiy done hy a .hrl^^n in (!oart, in the caiiiKity a.s ■Ind;5e tlnie, .md I merely write a tiiUlilnl and 'tndis|iui)>d a>:e.ijnnt of the factN, having an intereHt in the same. Who tlien would he the scandHlizer of Jnd^e Wctm re in his capariiy of Judj;'? I wiio, pnhii.shed and pleadtul only tlie true fact.s as they occurreil.or ihe man who actunlly did the deed? I think not I, hut the man who actu- ally di I the tleed, soaiidalizeil and relleetnl •'on His Honor Mr. Justice Wetinore in his c.ipac.itv as one ot the Judges of this honorable Court in the discharge of his duties and in the Hrliiiinis' ration of justice by him as such Ju ge" loih. The matters contained in the letters iu question are not libelous, scandalous, or contemptuous as alleged, but are true, and were written without any malice or improper motive whatever, on suhjects occurring in a Court of Justice, and pertaining to the public justice of this Province, wherein the writ r and his brethren of the bar, as also the public, had a deep interest; were addressed to his re- pre.sentative, Mr, Elder, the Editor, \n the Legislature then in session, which alone had power of dealing with such subjects ; and the writer, considering the press the l).>t Lorri'ctor of the mitters complained of, as a so the best means ot making known the suggested amendments, pu'diihcd the letters in the Telco matter alleged as a libel, was a faithful and correct report, honestly ami fairly exercised, it was a privilegid communication, and they should find for the defendant, which they did. On application for a new trial it was hilly ad- mitted by plaintill's counsel that the ]iublic being interested in what passes in a court of justice, every one being interested in the due administration of justice, hud such proceed- ings been iu a court of justice they would have been privileged, but being in Parliament weie not so. The court in refusing a new trial, among other things, held that the right of publishing such proceedings iu a court of jus- tice, being for the public benefit, though the character of individuals tnight suffer was unquestionable, and that for the puhlicatiou of such reports the puldish- ers were neither criminally nor civilly respon- sible. The ])resumpiion of legal malice being rebutted by a fair and honest report of what passes in a court of justice, and the great bene- fit to the public in obtaining knowledge of proceedings in courts of justice, especially in all that relates to the conduct ot the public stale, far outweighing irivate injury to an individual from such publication. Now in view of the operation of the statue 'A'l, George 111, chap 60, called the Fox libel act, declaring that the question of libel should be left to the jury, and of the Campbell act, and 7th Victoria, chap, 9(3, allowing parties to plead the truth of the alleged libel, the .'auie statutes being re-enacted by the Dominion ParliaiU'-nt 37 Victoria, chap. 38 (1874) p. 181 with the numerous enlightened decisioiis 'ly Lord Chief J stice Ccckburn and other emin- ent men, the law of libel has become wholly changed, especially within the last 60 years. ••The full liberty" (says Lord C. J. Cock- burn, L. Rep. 4 ^ B, at page 93) "of public writers to comment on the conduct and mo- tives of public men, has only, in very recent times, been recognized. Comments on Gov- ernment, on ministers, and ollicers of state, on members of both houses of Parliament, on judges, and oiher public functionaries, are now made every day, which half a century ago, would have been the subject of actions or ex- officio informations, and would have b^rcught down fine, and imprisonment, on publish .irs and authors, yet who can doubt that the pub- lie are gainers by the change; and that though injustice may often be done,and though public servants of the any supposed u IN THK SUPHEME COURT. men may oft. n have to smart under the knt-n sense of wron«{ iuflicted by hodtiie criticism, the nation profits by public opinion being thus freely brought to bear on ihe discharge of public duties. Again the recognition of the right to publish the proceedings of courts of justice, has been of moderu growth. Till comparatively recent times, the sanction of the judges was thought necessary, even for the publication of the decisions of tlie courts, upon points of law, even in quite recent days,ju(l»;es m holding the publication ot the proceedings of courts of justice, lawful, bn.ve thought it necessary to distinguish what are called ex parte proceedings, as a probable exception from the oj)eiation of the rule, yet ex parte, proceedings, before magistrates, for crinnnal informf.tiou.s, are published every dav,but su^h a thing as an action or indictment, founded on .'\ report of such an ex j^^'''^*^ proceeding is un- heard ot, and if any such action or indictment should be brought, it would probab'y be held that the true criterion of privilege, is not whether the report >»as or was not ex partc,\>vit whether it was a fair and honest report ot what had taken place, published simply with a view to the information of the public, and in- nocent of all intention, to do injury to the reputation of the party afl'ecteu." So the i)ublic conduct of a public man is a matter of a public interest and may be dis- cussed witii the fullest freedom aud may be made the subject of hostile criticism ami of hostile a uimad version, {)rovided the language of the writer be kept within the limits of ai' honest intention to discharge a public duty, and not made the means of promuli^dt I ug slanderous and malicious allcj^a- tioiis, airl such i." always a (jue.stion for the jury, Heyiiior vs. Butterworth, 3 V. aud F. 372 — per (.^ockburn L C. J. — and may reason- ably be ((pplied to a public man in a fiuiilio capacity when not so as to a private individual, St.i.k Libel 242; also any subject has a right to conimeut on those I'.cts of public men which concern him as a subject oi the realm, if he do not make his comments a cloak lor malice and slander, per Parke B. i? Pal.ueter vs. C ipe- :and, 6 M. .<; W. 107. "1 think" (says Lord (.'.J.Cockburn) "the fair position in which the law niay be ettled is this, that where the public conduct of a public man is open to ani- madversion and the writer, who is comment- in;; u[ion It, makes imputations in his motives which aiise fiurly and legitimately out of his conduct, so that a jury shall say that the cri'. cism was not only honest but also weil founded, an action is not maintainable, Camp- bell vs. Spottiswood, 3 B. k S. 77();Stirk. Lit). 242. So was the public conduct iiui so the published animadversions in this ca.se, so sworn tj here, and not attempted to be denied before the court, and per Boville, G. J., in Odger vs. Mortimer, 28 L. T.N. S. 472; Stark, Lib, 244: "As for ridicule that is often the strongest weapon in the hands of a public writer, and if it be used fairly the presunuition of malice, which v/ould otherwise arise, is re- butted and it becomes nece.ssary to give jtroof of actual malice or some indirect motive or of a wish to gratify private spite." Ami of which no proof whatever is even suggested here, but is sworn to the contrary. Your honors will accordingly ))erceive that the Starkie on Libel of 1830 has become entirely rewritten and changed by Folkard in the 4tu edition of 1876, the cases maintaining to be lawful. The publication of {)roceedings in courts of justice for the public beneiir, if fair and honest, are very numerou- and even abridged and condensed reports, may he pub- lished if fairly and honestly made, although they might reflect upon individuals and they will constitute a good defence to actions for libel, both civil aud criminal, in rebi'ttiug the pre.sumed inalicd and want of reasonable cause for such publications, see Starkie on Libel by Folkard 4 ed (1876), chap. 1), part 2— "Re- ports of judicial proceeding;" chap. 11 "Com- municatious on matters of public interest." chap. 13, "Malice in law;" chap 25, "Evi- dence for the defendant;" chap 33, "Criminal division;" chap 41, "Proceeding by criminal iufouuation;" chap. 43, "Informations;" chap. 44, "Proofs on the part of the defendant" and the numerous authorities under those cha])ters, as also Arch.Crira. Evideuce 19 edition, 1878, "Sedition," p. 8 33, 34, 35, 36, and Libel, p. 919, 920, hence it will be found that the liberty of the pres.s, called the fourth estate of the realm, under the guards named by Lord Chief Justice Cockburn, gives a value and blessing to the public, of remarking on the conduct of ju Ige- and other public .-ervanis receiving tlie public pay, which it is ilifficuit to over estininle :'iid it was by this modem standard tnat 1 wrote those letters, for myself, for the Bir and h«r the j)ublic. I'hiet Justice Cockluiin, wMose judgment of the wiiole Court is fudy cited in all tlie modern book.s, o|iens a new chapter upon the right of commenting on ])ublic servants, .Mich as judges aud other fuuctionarii-.s of state, never heiore declared aud I will endeavor to make pro|)er use of that invaluable chapter. Judye Wetmore took apparent uinhiagt .it n.y calling him a public ■servant, but Lord Chief Justice Best, in Henley vs. the Mayor of Lyme, 5 Bing. 107, and Lord Chief Justic Conkliurn in Wason vs. Walker (.see L. Itej) 4, Q B., page 90) calls him j)ul)lic ". ervant." The rule nisi charges in e with retleeting on Mr. Justice Wetm«re in his capacity of one the judges of this honorable court in the discharge of his duties and in the adniinist>ation of justice by him as .-^uch judge, that IS the very character in which I claim to deal with him, not in his })rivate character; I have no right in that, but in his judicial capa- city as "putilic .servant," receiving public pay and holding office to administer justice only "during good behavior" (as his commission has it), and if 1 I lu M an arn B tcl en la-. h.) th( Be It n UJg till ing irii; nun and nex CU;'( IN RE DAVID S. KERR. 15 [iresuniptidn arise, is re- ) give ])ront" motive or ol nit of which Rested here, contrary. jive that the )me eutirely [ in the 4tu ;aiuing to be oceediii«9 ia leneht, if fair - and even nay l)e pub- ide, although lals and they actions for rebi'ttiug the isonable cause 3 on Libel by part 2— "lie- lap. 11 "Com- lUc interest." p 25, "Evi- 33, "Criminal g by criminal lations;" chap. ?fendant" and those cuai)ters, edition, 1873, , and Libel, p. found that the 'ourth estate of aamed by Lord ;a a value and arking ou the )ublic >erva)its It us ilitficuit this UKideru :ert», for inysflf, (.'hiel Justice he whole Court book.s, upHus a comnit^nting on t'es and other bet ore decltired oper use of tliat Wetuuire took 3g him a public aBest,in Henley J. 107, and Lord isou vs. Walker 90) calls him nisi charges me Wetmwre in his this honorable iuties and in the imasauch judge, which I claim to rate character; I his judicial capa- 'iving public pay to administer good behavior" 1 it), and if 1 his conduct aa a public servant" has been bad behavior as a Judge on the bench, ami I have been injuriously attected by it, 1 claim the right, for myself, for the bar and for tlie {)ub- lie, under the law, as laid down by Cockburu, C. J., and other judges, of fairly placing that "behavior" before the country, for the public beuelit, that they may judge whether such "Itihavior," as published and not de- uied, is "good I ehavior" or "bad behavior" of ou» of their "servants," receiving their pay of $4,000 per anL^..i, besides travelling fees, lor tlie [)roper administraiiou of justic in this Province, so that, if the "behavior" of His Honor was not right, it might, without more extreme measures, be checkea by public pin- ion. Herein lies the greit power ani value of the )(ress for the public betiertt. iiiv.)ud'.ug the very "servant" whose behavior is complaiued ot, lie being one of that puMic, and who, if wrong, may be chec ed, do better and have the benefit of it. So it is now in England. "Coimneuts," says Chief Justice Cockhurn, "on 'Judges' and other public functionaries are now made every day which, half a century ago, would have been suljects of crnuu^l ac- tions and brought down fine and imprisonment ou tlie publishers. Vet who can doubt," says His Lordship, "that the public have been gamers I y th'^ change?" Then, pursuing and illustrating His Lordship's words, let me com- pire the past history of the Judges of England lor the last GOO years, before Sir John Holt, with the present English Bench. Sad to say, looking back from the Norman Coniiuest until about 223 years ago, the line of the Chief Jus- tices and numerous of the other judges of the great Bench presents, in general, everything but a credita')le record. The good Chief Jus- tices, .such as GiauviUe, Gaseoigne, EnrtestiUe, Miirkhiim, Roll, rt.de and >oiiie others, are among rjie exc-i'ti'ius; nut the great maj^'ty, among them Hengham, TresJean, Kyhnire, H liiiig, Glyn, Hyde, Scroygs, Wright, Jef- ti rie-i, and miiy others, bee uiie denicns in v loving con- nexions tenderly hoping for their splendid c;,:'eer and honored ViriglitnesM — how came it they did so ill and ended so ingloriously? The answer is plain: They had no timely check; ia England no pre^s of any kind till Caxton, in Edward the Fourth's reign; no newspaper jHuited in England till near the close of Charles the Second's reign; the statutes o!' smndaluiii vuigriatum were passed to stifle information of the vices and crimes ot the Great — including the judges, the star chain, ber (a curseo court) till Charl s l.st, was al- ways open to punish any reflections upon the mighty of the land, and those straying Cliief Justices being chief political gamesters, look- ing out for the chancellorship or some other political grab and ready for any vile work to accomplish their purpose, ran into judicial murder, utter ruin and ignominious deata when they might have been saved had there been, as now, a free press and public opinion o check them. This ia what the public nf England (as by Lord Cnief Justice (Jockburn) is now gaining, of benefit in publications brought to bear by the power of the press in respect to their "public servants," keeping them in check and presenting the present judiciiry of England as an example of great i excellence cou'pared to the disgraceful past I with no such check to preserve them. Human- ity always the same, repeats itself in eveiy age, i and under similar circumstances, will do the I like thing again if not checked by the new \ found press power, which may be wielded tor I public benefit, power over wrong.H, which you j are not the authors of nor have no means to correct or abate. I pray that youi honors a ill i not imagine, from anything 1 have said, that I i would undervalue the rights of \ our bench or lessen its high p'stion. Not so indeed; all ' my opinions and feelings are the contrary. 1 j may appeal to you all if 1 have ever been other than most respectful to the judges. 1 have always believed that manliness and duty re- : quired I should be so, and I wish you to 1 understand that when I speak of a Ju^!^", "as a public servant," I may equally say so of j Her Majesty the Queen, a public servant or trustef ot rne Slate, aud as much bound by ! the petition ot right, the bill of rights and the ] law.s t'eiierally as a subject is. When 1 say of i a judge that he is a "puolie servant" I mean a ' .-ervant of the very hiLdiest order, filling ttie I most imjiortant servant's otlice in State, of in- I dispensable value and imnortance to tlie people I and without whose services we could not have the law used or justic" done. It may not have I occurred to you, as seems to me, that there is no name known among men which represents so many complex ideas of lofty importance and needful excellence for our indispensable rights and comfortable existence as does the ter'j. judge, li may result Irom our very nature, f-eiiug that justice is a necessity nvc cannot ilo without. It inav have been strengtheueil by Bible teaching, liearing so much of the Great Judge of all the earth aud his ftnallv coming to judge U", and all earthly justice admin'stered by an appeal ou oath to the Judge Most High, but however impressed, there is, I think, no word m our langUi>ge which carries so much with It to ordinary mind.s, whether of saints or sinnern, the law-abiding or law-breakers, as the word judge does; but aa the word "represents I 16 IN THE SUPREME COURT. lofty and valuable attainments, so the judges place must be accordingly filled to come up to the common expectation of good order, pro[)er courtesy, and even handed justice to all. la few words he must have a well k''])t bench for all applicants and beho.dera. It will prove his strong tower; and as death has no sting nor the grave victory over the righteoun. so maligners can have no sting nor libellers victory over the good Judge with his well kept bench; but like Sir Matthew Hale, Sir John Hoit and others of the England Bench, Sir John Beverley Robinson of the Upper Canada Bench, Sir Brenlon Hali'urton of the Nova Scotia Bench, and the great ornaments who have passed away from ttiis honora' le court, the good man's virtuous propriety in his judicial seat, his great excellence in doing even handed justice among an approving people, will make felons fear and murderers respect him, and be as a wall of fire round about him against assailants of every sort. In view of the modern law concerning libel, and the great excellence of a well kept Bench, allow me the favor of applying it to the much respected Bench which I have the honor to ad- dress, if a vile slanderer or libeler should at- tempt his vituperations upon you how far could he get? If he called the Chief Justice a rogue, Judge Weldoa no gentleman. Judge Duff dishonest or Judge King very uncourt- eous, who would believe him? And would not the mere silence of a well kept Bench he the most eloquent answer which could justly be given. But if you, gentlemen, and Judges whom I have the honor to address, should be legally informed of a Judge of a Court, quite differing from you, and who would ill-treat slander and ridicule a counsel before him, that without any cause for it, more than once threatened to take the cause out of counsel's hands, arbitrarily threatened to stop his cross-examinations, more than once insultingly told him he was snarling at the opposite counsel, refused to hear him iu the most im- portant duties of thecause.commandiug him to hold his tongue, and otherwise acting so un- bearable a part that the counsel was obliged to withdraw trom the cause altogether. Then, as gentlemen and judges, I think, before you granted an attachment, you would take such conduct into account, as was done in Regina vs. Pinisoll, and Regina vs. Angers, cited iu Regina v.s. Wilkinson, 41 U.C., Q. B., 29, 30, or, it not, you would, at least, determine that fruch a case ought to go to a jury. Now, the letters themselves, having on their own face matters which amply rebut any in- ference of malice, and it being alleged and proved by affidavit, and not denied, that the tacts contained in those Ittters were true, and published for the public benefit, without malice, I claim that this honorable Court must either dismiss this application against me, as lawfully answered or as a matter which they canuot try without a jury, as was determined in the Attorney General vs. Baillie — 1 Kerr, 443 — and, therefore, uj jurisdiction, or thiit I nm expre.ssly eutitlttd \o the benefit of a jury on this charge, according t'^ the great Charter and the .statutes 32 George 3, ch. 60, 6 and 7 Vic, ch. 96, and 37 Vic, ch. 38, provided for that jiurpose, concerning defences to libels; and this matter without a jury must fail. 11th. That the proposal, as in the Rule, to try the alleged offender in a summary way, depri- ving him of his ileleuce by Jury, and to ad- judge and punish him by his olFeuded accu- .sers alone, seems tyrannical and 0]>j>MiMsive, is wholly against the great Charter of liberties, and appears contrary to commca decency and civilized right. Aliquis iion debit esse judex, in j)roj>ria, causa, quia tion jmtcst esse judex et pars. No one can be judge iu his own cau>e, because he cannot be judge and party. So says the common law maxim, which applies to this case. In Stark. Libel, 631, it is said: "It is neces- sary that Courts of Justice should have the power to punish for contempts, but it is a power which has its jus'ification in necessity alone, and should rarely be exercised and never, but iu those cases where the necessity is plain and evident." Holt's Law of Libel, 163. In 2, Campbell's Lives of the Chief Justices, in a noti- to Chief Justice Wilmot's life, page 298, it is said: (In Rex and Almon for selling a pamphlet severely reflecting on Lord Mans- field and other Judges of the Court.) •'Iu consequence of the resignation of Sir Fletcher Nor' on, who as Attorney General had made the motion, it was dropped after cause shown, while the Court was considering of its judg- ment; and though there can be no doubt as to the power to proceed by attachment in such cafies; if a piosecutioa for libel ou jud;;es bo necessary, the preferable cause is to proceed by information or indictment, so as to avoid plic- ing them iu the invidious situation of de- ciding where they may be supposed to be parties." Mr. Justice Coleridge, a most wise and ex- cellent Judge in ex 2}artc Wilton 1 Dow. P. C N., S., 805 and 806, which was an application to commit for contempt, made the following observations ou refusing the rule: ''As I did not recollect any ca^^e that could be considered in point, I desir'ed to pause before I granted a rule, beci'use, although no Court ou^ht to shrink from the assertion of those privileges, or the exercise of those powers with which the law has invested it in trust ior the public, and to to make it better to discharge its duty to the public, yet every Court, however high, ought to proceed with great caution in the u.se of summary power, and should hesitate in making a precedent which may be abused, even when there may be much seeming reason and con- venience in the exercise of it, iu the particular instance." iHi IN KE DAVID S. KEHll. ^ \ I'— 1 Kerr, 1, or thiit I of a jury •at CliarttT ), 6 and 7 provided 's to libf-ls; r, fail. Rule.to try way, (iepri- aud to ad- fwded accu- niuiHsivf, is i( liberties, leceucy and in 2)ro2iria, 'ex et pars. n>e, because lO says the ies to this •'It is neces- Id have the , but it is a . iu necfssitv zeroised and e necessity is w of Libel, Ihief Justices, ot's life, page ion for selling I Lord Mans- Court.) "In Sir Fletcher ftl had made cause shown, g of its judg- 10 doubt as to ment iu such ou juil;;e8 be to proceed by to avoid pi ic tuation of de- iposed to be wise and eX- 1 Dow. P. an ap|>Ucation the following le: "As I did i be considered re I granted a 'ourt ou^ht to o.se privilei^es, viih which the the public, and rge its duty to however high, .ion in the use of itate in making ised, even when eason and con- u the particular 7, it In the case of Birch vs. Welch, 10 Irish Ey. Rpp, 93 — the MR,ster of the Rolls in icfusiiig the application to commit for contempt — referred to the opinion of the celebrated Mr. Hargrave (as to the asserted power of We.stuiiii.stcr Hall) and quoted from it as fol- lows; -Mfthe doctrine of contempt be thus wide; if any of the great Courts of Westminster HmII may construe what they pleas^- into a contempt, and may under such denomination, without trial by jury, commit all per.sous of crime, and also have an indefinite power of punishing by tine and imprisonment; aud if all this when done be unappealable and uuexam- iuable, what is there but their own wisdom and moderation, and the danger of abusing so arbitrary a power, to prevent any Court, under the shelter of the law of contempts, from prac- tising all the monstrous tyranny which iinst disgraced, and at length overwhelmed, the "Star Chamber?" In a late celebrated case in England in 1877 the Republic of Costa Rica vs. Earianger,4'j L. J. Chancery, 375, in the Court of Vice Chau- cellor Malins who, on hearing a complaint by Mr. Edwards, the plainiiH's .solicitor, allet^iug th" It, Clements, the defendant's solicitor. had improparly detained a paper from him in the cause, had used abusive lancuage to him and had assaulted and forcibly turned him out of Clements' office, and so had obstructed him in the proper discharge of his duties as such solicitor, in the cause, and though Mr. Cle- ments had afterwards apologized, he refused to pay certain costs incident to the proceedings to attach him, the Vice Chancellor held that Mr. Clements had been clearly guilty of the contempt complained of and ordered him to pay the costs. On appeal to the Lords Justice.*, Sir George Jessel, Master of the Rolls, who principally reviewed the decision — a Judge posses.sing (as I think) ii larger amount of com- mon sense together with a larger knowledge of law and equity than any other Judge or lawyer in England, after reviewing the facts expressed himself as follows: — "I am utterly at a loss to understand upon what principle this could have been treated as a contempt of the High Court. If Mr. Clem- ents used language whiclf might have occasion- ed a breach of the peace, or more violent than was necessary to eject Mr. Edwards from his room, Mr. Edwards had various remedies open to him. He might have taken criminal pro- ceedings either before a magistrate or by in- dictment, or he might have brought an action for assault. Therefore the Courts of Justice were not shut to him. Now, how did the conduct of Mr. Clements interfere with the ordinary course of justice in the Vice Chancellors Court?" (aud after show- ing by the facts it could not have reasonably done so he proceeds): * * * "It appears to me to have been wholly foreign to the notion of a contempt aud undue interference with the ordinary course of justice. Therefore, it seem.f committini.; tor c^n- tempt being practically arbitrary, and unlim- ited, should be mo t jealously and carefuUv Wfitched, .^nd exerci.sed, if 1 uiay say «<>, with the gri-atest reluctance aud the greate.st anxiety on the part of Judges to see, v,'hether there is no other mode which is not open to the objec- tion of arb'trarine.^s nnil which can be broiii,'iit to bear upon the .subj'i^t. I say th .t a Judgn shotild be most careful to .see that the cause cannot be iaii ly prosecuted to a hearing unless this excreme muiJe of dealing with peisons brought bef"re hiia on accusations of contempt should be adopted. "1 have, my:-i!'lf, had, on mauv occa-«ion.s, to consider this jurisdictio:), and I have always thought that, necessary though it b", in is ue- cessary only in the sense in which extreme measures are sometimes necessary, to preserve men's rights, that i.s, if no other pertinent remedy can b(i found. "But these considerations appear U me to ap- ply with the ijreatest possible force against ex- tending the jurisdiction, to include things which never were included in it before, and to strain the acts of men, which were done with a very dili'erent purpose so as to make construe- tively, so to say, interfering with the ordinary course of justice. "It seems to me thai there was no case for a committal whatever; aiici with great deference to the Vice-chancellor 1 think the order should not have been made, and th't it should now be discharged. Meilish and Piaggally, L. J.J , fully concurred with the Ma.ster of the lioUa in his reasons and judgment and the Vice- Chancellor's order was reversed. So much tor Civses and opi?)ions evrn in Kugland where en- croachments made fro.e time to tune in :ii,'es past hav passed into law to the iiijurv of lib- erty aud the rights of the people, but here, we have nothing of the kind hut only the spec lie power of 178-t, whereby we may reach this case and, without going into unpleasant connexions or particulars, but looking at mere ap[)eara'.)ces and the view likely to be taken by a loyal and intelligent public, I am quite sure this honor- able Court would not deem it delicate to ex- clude a jury, and be the judge and party iu this cause. The Attorney Ociierars .\rKiiiiieut. The Attorney General in support of the rule, said: — I shall treat the matter in a proper spirit; I have no interest, other than for the benefit of the Bench and Bar, largely interested in the event. I think the rule ha-; been entirely mis- apprehended;the truth of the matters stated in the letters has nothing to do with the publica. tion of them and affords no justificatii n for the publishing of scandalous matter against a Judge. 1st. If the matters contained in the letters are libelous, or scandalous, or vituperative, or Il; 18 i\ TIIK SUPfiEMK COURT. It B (\ impute dishonest motives to tliose engaged in thi' jmliidal nllice, ov are sciiiuinloUH or vitu peratiTC in legani to it, it is calculated to ; bring the administration ot justice !nto con- ti nii)t, (\ntl the ])vcHeut istiuMnost proi'i-r mode ' to punish the oil'ender, and this wnuid ''e ap | plicalile to justice in grneral. i 2iid pcinr. That the like mutter published after the trial at Nisi Prins, and '\'hil(' a mo- tion forthi' new trial was jieinliiiu'.iu regard to the administration ot'justiee, and wtiich is calculated to bring it into oouteinpt, this court has power vested in it to punish for such ' contempt. ;Trd. point. That the matters contained in the letters 2"'>* sc are calculatt'd to bring the ■idmiuistration ot justice into contempt in this countr}'. I now tihall deal with Mr. Kerr's objections. 1st. The application if allow ide. in any case is too late. He has alleged that .'another proceeding :night have been adopted, so far as regards that, if a libel, he says it might have been dealt with in another way; that is not a suf- ficient ground. The application wis made the very next term after the writing of the letters; that is in sulllcient time for a criminal infor- mation, and equally in time for this proceed- ing. Tliis objection is not sustained b}' any authority. 2nd. No relator or informant. There is nothing in this objection. I think the auth- orities bear this out: That where ever con- tempts are brought under the notice of the Court, no matter by whom committed, when brought to the notice of the court by asaicus curiiv, or otherwise, it can be dealt with by the court as matter of public notoriety, under the notice of His Houor tlie Ciiief Justice — as by theL .rdChancellor in Lishincre Charleton's case, 2 M. & C. 316. His Honor the Chief Justice laid the matter before me, in conse- ijueuce of my official position, and requested me to make a motion to the court. I take issue with the accused; it is the duty a:,d right cf the Attorney General, if the ad- ministration of justice is affected hy such scan- dalous matter, to bring it forward. The only information required is the matter it-^elf, and anj' member of the bar couM do as 1 have done — bring it to the notice of the ciurt. 3rd. No proof denying the facts or truth of the matter stated in the alleged letters referred to. The answer is that no affidavit or other pro f is necessary, because that is not what the Court is to inquire into. One of the ca.ses I have referred to — Keg. vs. Castro and Skip- worth L. Rep. 9. Q B. 232, 234. We have only to consider the truth of the fact that such letters were written. 4th. No proceedings before the Grand Jury indictment, or rule nisi, settinj, out in words any matters scandalously reflecting, etc. We must look at what the facts have been to an- swer the objection under the rule. In the Lishmere Charleton case before cited, a long letter written by Mr. Charletoi-- to the master, and iiddresse I to the Lord Chancellor, 2 M & C. 316, on the terms of the letter, and that they had received such letters sent to the Court ('see McGill case 2iid, Fowl r 474, cited in Charleti'n easel the form of the order of the Lord Chanc lior, the matter contained in the letter signod E. L. Charleton. It was a con- tempt of the Court; .so here on p''oof of the let- ters the same. So ill Onslow & Wlially's case, L. iJep. 9, Q. B page 219, 220, as also the case before cited of Castro and .^kiitworth, were proof suflicieiit without further sotting out the libel. So in Hec. vs. Wilkinson re Brow", 41 U. C. Q. B. 48, tlie Hon. George Brnwn, for printinji and publishing in the DaiUj (rlohe and lV<'rkl)j Globe comments on i. judgment of that honor- able court, and especially on that of Mr. Jus- tice Wilson, and thereby scandalizing that honoralde court. There the rule was, a^^ in this case, for contempt of court. The libel seems not set out in that case, and, therefore, the accused has had all the notice by the let- ters themselves required to be given. 5th. No evidence before this court of the facts and circumstances out of which the alleg- ed scandalous or cor'.temptuous matters arose, except by the letters, nor any matters concern- ing the charge of which this court can take judicial notice. The affidavit shows this case pending a verdict, and a notice for a new trial pending. 6th. If any supposed libels or publications reflecting on Mr. Justice Wetinore, they re- lated to proceedings in other courts and not in this honorable Court. I think this Court will consider the proceedings at nisi prius as relat- ing to this Court — the Court is holden as a part of this Court, with the records of this Court before it, and as part of the same Court trying a cause pending in this Court. 7th. By the constitution and practice of this honorable Court, it has oo power to pro- ceed by attachment for alleged contempts un- less committed in the face of the Court itself, or for actual obstruction of its proceedings, etc. I get rid of this point by showing as I have that this proceeding is ujcessary to vindicate the proceedings of this honorable Court from scandal in the course of administering justice. 8th. The same answer as above. 9th. No libel nor any legal offence what- ever charged, stated or named, in the rule nisi. It is named in the rule nisi, divers mat- ters in the letters which scandalously and con- temptuously reflect upon Mr. Justice Wetmoro in his capacity as one of the Judges of this honorable Court, in the discharge of his duties and in the administration of justice by him as such judge, thereby tending to defame, ob- struct and bring into contempt the adminis- tration ot justice in the courts of this Province, which is a sufficient charging and naming of the offence. 10th, That the matters contained in the let* e' U( in In IN RE UAVllJ S. KERU. 19 % ters are not libclouH, soarxlalous or contemptu- ous, as alletjiiii, bu are true aud were written without any malice or imjirojiT motive what- ever occurrini,' iu a court of ju-t ce, ami where- in the writer and his bretheru of the bar ami the public had a deep inti'rest, addrrssed, etc., t'l Mr. KjIhi- and the L'^cfi.slnture, considermi^ the ])re.ss rhe be-t corrector of the matte s coai- phiuied of, as also of notify iuK of uu<;j^estHd ainendm nts, imbli.ihed the letters with the f.iir aud hunnst purpos'^ of accomplishint; very inijiDrtau!. ends f ir the jiu'ilic benefit in the bt-ltt-r adiuiuisrr.itiou of justice, and they were !a\vful and !irivih'gi'd jjublicatious. 1 will pass ovtT this for the present. 11th. The proposal, as in the rale, to try the alhgcd oHeiider iu a summary way, de- piiving nim of his defence by jury, aud tu ad- )u if^e and (luuish him by his ollVnded accusers alone, beeuis tyrannical and oppressive, is wholly aj^ainst the f^reat charter of liberties, aud ajipi-ars contrary to comni )n decency and civilized rit;ht. Tliere is no douot that this power i.s in the cnnrt. T.ie accused seems ti think, it is only tur a C(pnte'in]it in the face of the court. I .say hu has not sustained his position as coutini'ig it toc(nitempt8 committed merely in the race ui the courc. I think if it were so it would be disastrous to the aamiuistration of jitstice — calculated to bring it into ccntenipt — one Judi,'e of tins court attacked for what he does i'l a trial of a cms , in discharging his duties in referi.-nce to suits and proceedings pending iu this court. i take it the power exists to be exercised by the supreme tribtmals o the country to punish libels aud scandalous publications in reference to Its proceedings Here a Judge at Nisi I'rius he uiay do lii.s iluty well or ill, a party lies by till hetiial court is over. The Judge car take no step iu Cnr, court, but he takes his tilace at term. A Judge ol this court, and this court is n-ei'ssarily vested with ])Ower to pun- ish i)\' contempt for itnproper publications con- cerning its p.'oceediugs or the proceeding-" of any Judge thereof, the power should be xer- cised wvAi extreme moderation but it does exist. 1 cannot look upon it in any other way thau as aright in the court, though a p.irty may be deprived of a jury, nor does this alter the light 1 am contending for, aud as apidied to the sc.iudaliziug of the court, and Mr. Ju-s- tic- Wilson iu llegina v.s. Wilkinson, the prin- cii)le upon which the proceeding is taken must be considered. It is a power given to every supeiior court to vindicate its proceedings, aud every such court is to judge of what i- or is not a c mtemjjt of its proceedinsjs, a power, au inse[iaiable attendant upon every superior tri- bunal, for Parke, B., in Miller vs. Knox, 4 Bing. N. C, 574, 614, as quoted by Chief Justice Harrison iu the Reg. vs. Wilkinson, 41 tr. C. Q. B. 97, 98, and the opinion prepared by Chief Justice Wilmot in Reg. vs. Alnion, "\Vilmots op. 243. Thus the judgment of Mr. Justice Morrison agreed with Chief Justice Harrison as to the powers of the Court to commit for conteiujit, bu"^ thought the appli- cation too late ami otherwise not applicable to the case. In re Wallace, L. R , 1 P. C. C, 283, 294, the appellant having written a letter to the Chief Ju-tice of Xova Scotia, and sup- posing he had reason to complain of the con- duct of the Judges of the court, wrote a letter addre.s.sed to the Chief Justice ivfi-ctiug on the Juilges and ou the administration of jus- tice generally, on the court, and though the appellant was successful on tlie ground oi hia being a suitor, it was lieb; that such letter was a contempt of court; 294 per Lord Westbury. So iu re Pollard, a barrister of Hong K')Ug Law; R-'p. 2, P. C.C, 106, sujiposed contempt ui face of cotirt, though fine ordered to be remitted, because the olFence was not distinctly stated and he ''ad not an opportunity of answering; the judicial com- mittee atlmitted the power in the Court to punish for contempt. So in McDerniott vs. Beaumont, Chief Justice Sup. Court, British Guiana, L. R 2, P. C. C. 341, publishing a paper, the Colonist, rellectiug on Juiige Cr^isby, a judge, aud on Mr, Ross, a barrister of the Court, aud upon the administration of justice in the colony by the Supreme Court, and abusing and threaten- ing Mr. Justice Crosby— the P. C. refused to interfe e with the contfinjit, which was dis- cretionary in the Court. The present case is similar to the one last cited. The Court has therefore the right to commit for contempt in such cases. 2ud. I will now say this power can be ex- ercised for a trial at nisi prius. This Court is the only one which has power to do it, the others being closed and all the records and proceedioes returned to this Court from the Court of N. P., and this Court is not deprived of such fiower — Con. Statutes, ch. 3"2, p. 712, concerning the Circuit Courts and of Over and Terminer, issues in the causes being joined in the Supreme C'Urt. Rex vs. Jollill'c, 4 T. Rep. 285; that was an instance where tlie King's Bench used au atfidavit which had been made at nisi prius and returned to the King's Bench for the purpose of moving for a criminal information against the defendant, considering such affidavit taken by the authority of the Court of King's Bench; see the opinions of Lord Kenyon C. J., and Ashhurst J. * * * "I put the case as of an allidavit taken in the Court of nisi ])rius, it can be read in this Court, so for a contempt ou proceedings there, it is punishable here. The case of Ramsey, L. Rep. 3 P. C. C. 464, appeal from Lower Canada, Drummond J., punishing Mr. Ramsey. The judicial cominiltea advised Her Majesty that the only proceeding which c>iuld have been taken against Mr. Ramsey, was be- fore the Court of Queen's Bench, under ch. 95 Con. Statutes of L, Canada, and not before Judge Drummond, * * » if the Court of n 20 IN TIIK SL'PKKMF, COURT. Queen's Bench cannot afford a JudfjR at nisi }i:ins any protection for un (ittack npon him, iit( Would 1)1' in n .Irciiifiil position iC, licini^ at- t:ic,l>t'd iii'tcr tht^ trill ;n)d with no power in the court to whicli he helonj^ed to ])ni)ish for con- tempt, any i>«r»ou svho clio.-ie to contract for tbe pablic-ition or driv*; thv Judj^c to i;o before a jury and l)rinf5 down th« di<;;Mitv of the Court. In dt^terminini; this ipiestioti it is a^^ui'd that tne judi,'e of the Nisi I'rins Court ha.snothin;^to(io witli this criminal court on the Crown .side— that they are not the same court, but wholly dill'i-rent, and if a ,Iiulf;e isiUta'.dced for iiriiceediii;,'s there, this Court has no power to proceed fir a contempt; the daut;er of such a principle would be great. 3mI. That the matters contaiupd in the let- ters per ,1''. are calculated to hri^ ^ the adininis- trution .'t jiiHtice into contempt in thisoun- try, which is an answer to the tentli objection. A number of authorities have been <'ited under tliis objeetion, and among them Wason vs. Walter.- L. Eep. 4, (>. B. 93, and 1 gree that where thiTC is a mere statement of facts they an; l^rcnight within the view exfiressed by CocKiK, n, C. J., and are privileged, if made in a fair spirit, without malice ; Lnit the writer cannot imiiute corrujit motives. In Stark. Li- bel, 242, cited by the other side, it is there laid down that a line must be drawn between criticism njion j)ublic conduct and the imputa- tion of motives by which that conduct may be supposed to be artuated; one man has no right to impute to another whose conduct may be fairly open to ridicule or disapprobation ba>^e sordid and wicked motives, unless there is so much ground for the imputation, that a jury sh.dl find not only that he had an honest be- lief m the trnth of his statements, but that hii belief was not without foundation. Campbell vs. Spottiswood, 3 B. and S., 776, and per Cockt)urn, L. C. J., public atfairs could not be conducted by men of honor with a view to the welfare of the country, if we were to sanction attacks upon tbem destructive of their honor and character, and ina(.e without any founda- tion, and the. Lord Chief Justice gives the rule cited by the other side, that where the jmblic conduct of a man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his C' the Jury shall say i ini was not only {»(.' 't 'luuded, an action is not ?• . i:~ not because a public a ■'!■. '■ .> onduct of a public man is opei. ■: ,.<.. ■■ ..cion of dishonesty he is, therefore, jusci.*ieaia a.ssailing his character. The writer cannot impute! corrupt motives to a public man. (Weldon J. — Ought you not to set out the particular parts of the letters you gay are libelous?) It wan not done in the Queen vs. Castro, or the Queen va. Wilkinson. I am willing to own that a judge is a public ser- vant, but he has no right to be scandalized. conduct, that honps* it mail; . .; writer ..i.uc. I can see the evil consequence- to the admin- istration of justice, if every body had a right to att.ck a jui much interest for the plaintiff as if he had been his leading counsel." I say the same now end I am very sorry to say I have seen Judges before, though not now on the Bench, to do the same thing, and I always re- garded it a great evil to tho fair adminstration of justice but I never put it down to motives of corru[(tion. Then Judge Fisher's death and Judge Wetmore's sudden appointment, there seemed indidicate hurry, as 1 thought, wiihout consulting the other judg-s but clearly noth- ing unlawluUy done. The Judge might have applied for the aiii>ointment and announcnd it in open court, but who c luld di.spnte the law fulness o! it or of Dr. Tuck and Mv. Burbidge heljang, if they did so, which I cannot say, but merely supposed from appear nnes. So the ridiculous observation, "It secnn-il as if sometinp's the Doctor's .soul was on the Bench and at .some other time tlie Judge's .soul was at thi' Bar, Imt always with his back to my client," as said by Bovil, C. J, in O.ljer vs. Mortimer, 28 L. T. N. S. 4?-', "as to lidi- cule complained of, that is often the strongest weapon in the hand of a jiublic writer, and if it be used fairly the presumption of malice which would otherwise arise is leburted, and it becomes necessaryto give prooi of acni d malice or some iiidiri ct motive, or of a wish to gratify private s])ite." Tpe ridicule here i ad refer- ence, of course, to the charge bnfore made of the Judges acting for the plaintiff and subject to the same observation, but no corn.ption nor any charged, though not gond behaviour on the Bench, which should be distingniihtd iu appearance as well as reality in holvluig the scales of justice in an even-balance, for as an upright man may be taken for a thi*-! by hi.s demeanor, ^'s a virtuous woman may be taken for a common prostitute by her impudence, so the Bench with all eyes upon it watching, is ready to detect the slightest appearance of one- sided conduct. Then the charge of stopping counsel being arbitrary and illegal, I alhrm it to be true, as threatiniid, iu St. John and done in Dalhousie, as it is alleged in the letters and sworn to iu the affidavit. It was illegal mis- behaviour on the Bench, which seriou^ily inter- fered with the best right of a suitor iu the course of seeking rightful justice, aid I know of no ipnlification or excuse for it, nor shuuld it be tolerated '■•y the public iu a public ser- vant for a moment. I know how much it enibarras.''es a counsi 1, liurts a client's cause and contribu: s to lose it and, I repeat, a willnl abuse of ofTice, which shi uld be distinguished by aovd be- havior on the Bench, but I see no corruption in it, nor motive of any kind imputed in the L'tters. Then comparing. the judicial vulue of Judge Parker at $3,000 with Judge Wetmore at$4,000,no corru|)t motive ascribed or charged. If I think one public servant,which l,as one of the public contribute to paj', ess valnible than another, or if I sh(Uild think the public better without him altogether, I never heard or thought that .such was libelous, if without malice iu publishing I believed it ti be true. Then as to wasting time on the Bench, I had a right, as one of the public, and as hurt- ful to my own business, to comiilain of wasted time on the Bench; not beginning at the hour appointed, but often exhausting the time by private conversations and otherwise, which IN RK DAVID S. KVMR. 23 should not be iudulgeJ in at the expense of stoiifiin;^ tlit^ whole luachincry of justice; and US to my supposing th.- Ju.lge aad otlieis were tiikiai: HW.wt council togetiier aud billing anJ cooing in ciamexioii with that acruai vvante of time which I comiilained of, it was intended in couufxion with thi- coniplaint, but no cor inption chaigtd or thought of. Thtiu as to the Judge's telling the jury at Dalhousie that if they brought in a verdict against his charge he would not receive it, and that it they brought iu such a v('rdiet it would be perjury, or words to that ellVct, aud afterwards denying it on the Bench at Term, The letters in th t particular of what was said by the Ju'ige at Restigouchc and at Fredericton were confirmed by my affi- davit, and what he said to the jury in Resti- gouche was confirmed by the ailidavit of C. J. Barberie, Esq., M. P., and attorney for the defendant in the cause. I did say in one of my letters I might apply to the D iminion Parliament, and I may have occasion to do so yet, but I hope not. Now, having gone over the Attorney Gen- eral's gr.-at bill of particulars of scandalizing, "reckless attacks," full of abuse," ra he says, where are they ? "The writer cannot impute corruiit motives," says he. Where have 1 im- puted corrupt motives ? But the Attorney General is caught in his own trap f\,r admitting as he does that a Judge is a public servant; that cotnaients may bo made on 'Judges, pro- vided the jury find such comments within the line laid down by Cockhurn, C. J., as adopted by the Attorney General, Stark. Lib. 242. I must then have the rule discharged by the court.on the ground that it is no libel or is an- swered in malice, or justified by rdeading, or if there is a dispute the're must be a jury to try it, as determined in the Attorney 'General vs. Baillie, that no jury here this court has no jurisdiction. The whole thing is groundless and vexatious. I should nevr have been brought before this court, and the rule should be discharged. The court asked the Attorney Gen- eral if he wished to reply, he answered in the negative,and the Chief Justice said they would considei' the case. ^ IN RE DAVID 8. KEUR. 25 St, John, (!th Sept., 1881. To f/ic Editor of the Daibj Tdcijmph: SiK, — Two auggcstioiis of iin|((H-tancc, to tlio public as well aH to the cause, liaviug been oiuittcil iu the ari^unieiit of Re Kerr hiatterui, you will inuoli ol>lige mo to iuaert the following. To the Jfonnnihle the Chiff Jiislicp utid to the Hononihlen Jailijc Weldon, Judije Duff and Jridije KiiKj : — May it Please Your Honors, - Judgment not yet delivered by rwisou, as I presume, of a press of business, In re Kerr, argued last term, I beg here to ask your attentiim not further than to this, that while discussing my seventh proposition, namely, "that by the constitution and practice of this Honorable Court, it has no power to proceed for an alleged contempt unless committed in tlio face of the Court itself or for actual obstruc- tions to its proceedings in the course of ad- ministering justice." I omitted two sug- gestions of importance which I now desire to supply, and of which I will duly notify the Attorney General. 1st. That the latest instance of which I am aware of any criminal court, even of Eng- land, otlering to commit a party for the single oti'encc of publishing an alleged libel reflect- ing upon the court was in 17<5I>, Kex. va. Al- nion against a bookseller, at whoso shop a libelous publication, '■'intaining one of Junius's letters, had i)cen bought. The mat- ter after argutnenfc and time taken to consider by Wilmot, C. .J., and the other Judges, the Chief, as it appears, being prepared to pronounce his Star Chamber and illegal views, then entertained, iu common with the Lords Hardwicke and Mansfield doctrines, as opposed to the opinions of Lord (Jamden and labors whose views were linully declared to bo law by Act of Parliament ; that mat- ter, however, was dropped, and the Crown Eroceeded in the same cause against Almon, y information or indictment, (see 5 l^urr, Rep. •2,(J8()). In that ago, the extraordinary practice had arisen on trials, for the Judge alone, without the jury, to determine the writing a libel or no libel, and to direct the jury accordingly, but twenty-three years afterwards the Fox Libel Act, 32 Geo., 3 Ch. 60, was passed, declaring the law to be, that in any indictment or information (the only constitutional modes of trial for publishing a defamatory libel), on the plea of not guilty, the jury might give a verdict on the whole matter put in issue, and should not be re- quired or directed to find a defendant guilty merely on proof of publication, and of the sense ascribed in the indictment or informa- tion ; so also by 6 and 7 Vic., chap. 96, Lord Campbell's Libel Act, a defendant may plead the truth of the libel, and that he published it for the public benefit, besides having his defence before a jury of rebutting malice or any other, which before the statutes ho might have resorted to. In view of these remedial and benelicial statutes, expressly made for the beuetit of the subject as also for the pub- lie beuetit ; on a charge of libel, can evt;n an Knglish Coi'i t now proceed in mattors of libel, (vi/. misdemeanors) to hear, try and deter- mino the matter against the party charged n'ithoitt a juri/, thus depriving him of his best rights and liberties and the public of their very ini|)ort;int benefits, directly con- trary to the Kr/iffM ])i(r/>(Mi'n of those enact- ments ? I think not. Has not such former practice, if it ever existed for law, entirely given way to the new state of things created by those statutes? I respectfully sul)mit that it luis, and that no case even in Kngland '•itii hf J'oiuid,, since those enactments, of the Courts j)roceediug without a jury to attach for the ■^ini/fe otl'ence of a libel not done in the face of the Court itself, and that sucli Court must now ])roceod to hear, try, and deter- mine the matter of libel or no libel, according to the course of tho coimnon law, as do- termined in tho Attorney (Jeneral vs. Baillio cited in arguing 7th proposition. i2nd. In citing tho great Charter of Liber- ties, chap. '2[), "that no freeman shcnild be imprisoned, etc., or otlierwise destroyed, but by lawful judgment of his peers, or by the laws of the land," I neglected to call your attention to the latter part of that chapter, which is the following : " We will sell to no man ; we will not deny nor defer to any man either justice or right." Now, against Sir Kardly Wilraot's ideas and inferences as to the Courts power to commit for contempt being within any exception of tliis charter, I deny them for law and opjjositely maintain that the latter part of this chapter plainly includes and limits the Courts' power to the necetisity (jf attaching and punishiuu; for faced con- tempts and artiial obstructions only, as con- tended for by me in my seventh proposition, but not ultra. Lord Coke (and in citing this great man, permit me to acknowledge my everlasting gratitude -for his Lt>rdship's inestimal)Ie insti- tutes and reports, decisions and opinions so admirably expounding the laws of England — a man who with some errors in life to be re- gretted, did vastly more to present the strong foundations of British law — the accurate memory of British liberty for the glory of the empire — the lading benefit of all genra- tions, than any other that ever lived). Lord Coke, I observe in his commentary on this latter part of the chapter itl Inst. 55, viz. : "We will sell to no man, note (9) says, ' ' that is spoken in the person of the king who in judgment of law, in all his courts of jus- tice, is present, and repeating these words nulU vendimus, etc., and therefore every sub- ject of this realm for injury done to him in bonis terris val jwrsona, by any other subject, be he ecclesiastical or temporal, free or bond, man or woman, old or young, or be he out- M 29 IN TfTE SUPftEME COLBT. lawutl. exci)mimiiiioiitt;il or luiy othor, with- out oxct'ptidii, iiiiiy tiikt! Ills romcdy l)y the coui'Ho of tlic law, .mil liavu jiiHtiro ami ri^'lit for tlu! injury (loiii) to liiiu frci'ly witli>r.it sale, fully without any dfiiial and ,s|icinto the end ; that is ^:he law ;" and His l/ordslihi]) cites more than tifty odd statutes and authorities now in force in support of his commentaries on tlii-< latter part of tho charter, it is accordingly laid down m Broom's Legal Maxuna, [)age IH, that a man is bound to acce})t anil cannot refuse the otlice of sherilt' when appointed hy the Crown and he is held to the strict performance of his duty, l)ccauso it is a t/isyrace to the Crown and to the ad- ministration of justice if the King's writs re- main unexef^uted, and that tho courts are hound to sec that suitors obtain the fruits of decisions in their favor, citing fJar'.and vs. Carlisle, 2nd C & M 77, and Howden vs. Standish, 6 Com. B 520, and Stockdale va» Hansard and nimierous late decisions, on page 14, note 5. In view therefore of the foregoing, any furthur expression of power in the Court, to warrant proceedings for con- tempt, committed in the face of the Court or for actual obstructions to its proceedings would have been wholly useless, for where a statute commands a thing to be done, it im- pliedly conininnicatftf all the powers of doing it, and what is iniiilicd in a statute, a deed, or a pleading, avails in law as if it were ex- pressed, i;i jtrcxfiio vitnini f/nrtitritf innnnf nihil (i/irrn/iir this great statute and the nunutr- ous statutes and decisions conlirniing it, ex- iire-.s!y and imperatively eotninandi'ig all the King's Courts that then! should be no diuiial or i/i/' Eplil for a Jnir to give such powers, and in his own acknowledged absence of any such a law, how came it then that His Honor, sitting as jndf/e of the law, should threaten me, to w'dlj'uUij hrenk the laic, when he knew he had no such power? Ib not this a wilful abuse of his office ? Does his com- APPENDIX. m. mission as a public servant to (uliiiini-stcr the law include a power to hreal: the, Idir when- ever he pleases ? The instance was pul)licly expressed by the judge himself and it ineon- testably proves a very great evil in his per- formance of ollice- -tliat lie acts as the luir hrcaldiuj inaster of his situation and not tlie lair ohcj/iiKj ^sei'vmit of it — the place ei'cated for him and not he for the place. This is but a mere specimen of his re[)eated and ar- bitrary threats, refusing to hear me when I most respectfully applied to be heard in the necessary exercise of my duty as counsel, if I objected, no matter how respectfully, to the interruptions of opposing counsel, I was an- swered that " I was snarling at the counsel," "The Government's anointed." At another time the Judge ordered me to ' 'hold my tongue he would not hear me," and other improper expressions of the like sort in the judge's own way of degrading the bench and soiling it, peculiar to himself — of the Old Bailey style bloody assizes, Sir George Jeli'ries fashion, being master of the situation ; at an early stage of the cause his vengeance appeared to be ilirected towards Mr. Travis, to whom he was in manners very insulting, and in the course of it referred several times himself to some coinmunieatiou or review in some papers by Mr. 'J'ravis of one of His Honor's judg- ments, as I understood ; here was the malici- ous feeling voluntarily proved by the judge himself against Mr. Travis, and inthiencing him on the Bench to the numifest injury of Lockhart's cause, and while I dismiss the subject of the judge's charge against me of vexatious cross-examinations, as groundless and wrong, I will now state for the benefit of the public and I hope for the better conduct of the judge in future : What are the rights of parties in a cause? What the rights of their attorney and counsel ? What the riglits of tlie judge ? As to the first. By the law of England and tliis country every British subject has tlie constitutional and undoubted Itlrl/ir/ij/u to come into Her Majesty's Courts with his suit and be respectfully heard by the judge, and to have his suit fairly adjudged, and may conduct it himself, or as to the second he may put in his place his attorney and counsel who have for him all the rights of the party himself. As to the third, the Judge is a public servant, appointed by her Majesty's Government to fairly and res2)ect- fully demean himself on the bench, and to hear and administer the law to all who properly come before him, either personally or by attorney or conn?"!. It is also his duty to maintain order and .tecorum in liis court and accordingly he has by law the power to punish as for a contempt auy one who wilfully violates them. Now, I appeal to all ju<^ges if I have not uniformly treated thorn with rospect ? I have always ma.intained it from principle, not only for the needs (jf good order in a court, Init that I thought it cowardly to insult a Judge as he could not conveniently come down to punish a fellow for his inso- lence and I regard that principle as recipro- cal—a nuin is not supposed to call a judge to account, by a whaling or pistol for insults ; and, therefore, any .Judge wlu) so far forgets his place as jjublic servant, and ins\ilts a suitor coming before him for redress, his at- toi-ney or counsel acts, the coward on the bencli by taking advantage of his .situation, dishonors his place, and is justly entitled to the public contempt, and 1 here! >y notify tliis Judge tliat I am now appealing to tlie Legis- lature and the public for redress, and I luay appeal to the Dominion Parliament. But should this fail, if his insults are repeated, I will endeavor to instruct him, that a com- mission, which I received from Her Most (iraeious ^Majesty the Queen, more tlian •-•■2 years ags, appointing me one of Her counsel, gives me as good rights to resjiect in Her iSlajesty's Court as any commission which he holds to administer tlie law can afi'ord to him. Let me now state to the Legiglature two causes, which remarkably, and, I think, vexatiously, lengthened this case by tlie learned Judge himself. 1. Though His Honor takes notes generally very accurately, he is much slower in doing so tlian any other Judge on the Bench— I mean in taking down the evidence, and this requiring me and other counsel, on examin- ing, cross-examining, and re-examining a witness, to stop and wait for a period of time, till His Honor wrote down the witnesses' answer, I tlihik I am safe in saying that nearly half the time of taking the evidence, was exhaused in this way, [plenty of time Judge to look over one's shoulder, according to your charge, at the clock]. The public time thus exliausted is a very serious evil, occasioning immense additional burthen on all who had to attenni\ISTKATIO\ OF .USTItK. St. John, 14th Feb., 1881. To (lie Editor of the Telvjjraph and M. P. P. of St. John: Str : " The proY)erty by what it is should go, not by the title."' I will now enter upon the subjects men- tioned in my previous letter. The pro2)osal of .Fudge Wetmore and, as he said, the Chief Ju'-tiee, to stop the cross-examination of witnesses, present one of the gravest ipies- tions that could well become liefore your Honorable House relating to justice, and I truly hope I may make plain what I say. In the abstract you must know, in your acknowletlged ability, that there is no clement so important in the administration of justice, whereby to enable a jury to get at human truth, as the unrestrained right to cross-examine witnesses ; it has been found 80 by all experience, in all countries and ages ; the reason is obvious — the greatest ex- perience that any man can bring to bear is often taxed to the utmost to devise a course by which he may best get from an untruthful, dishonest and artful witness, the truth of the niitter, \\o\v best to bring out such particu- lars before the jury, as will discredit his tes- timony and lay a proper foundation for con- tradicting him by witnesses on hand for the purpose. The judge can know nothing of this, and if you have to tell him, that puts the witness on his guard, and the effect is lost .accordingly. For numerous centuries, the practice of England has been, and now is, for judges of the greatest emineucc, not to interfere, but to allow to counsel the largest discretion of this most important duty. To present a proper view of the suggested change for added judge power, proposed to you as a legislator, I must resort to the truthful, though unpleasant necessity, of comparing the past with the present elHciency of our Bench, and the encroachments of the latter which, within a few years, have been made upon counsels' duties and our jury system, to the great injury of suitors, now extensively exercised by our Supreme Court, against law, and seriously for the worse of a law which had endured for centuries. It M'as admitted liy all, knowing anything about New Bruns- %\ick, that our Supreme Court Bench was signally filled with high-principled, highly educated men — lawyers who adorned the Court as judges from the first establishment of tliis Province in 1784, to within a ]ieriod of some 80 years. Take a Bench of the Supreme Court .ludges, in our own remem- brance — Chief .Justice Chipman, Botsford^ Carter, the two Barkers and Street — men of the highest character who had studied to become thorough lawyers, and were selected purely for their fitness for the Bench. The judgments of Chief Justice Chi])man and his brethren were like the decisions of the best English Jmlges and would do credit to West- minister Hall. Their decisions v.ere almost always unanimous — much valued at home and highly commended abroad. They never interfered with the rights of counsel, juror or suitor. The Court so composed had the confidence of the people and a deservedly eminent .standing all over America ; but the changes in our (Jonstitution, by Besponsible Government and political party strifes for ofHce, wholly changed the order of things. The TjCgislature from time to time shortened the period of lawyers' study. As our politi- cal institutions advanced the glory of the Bencli began to decline ; the successful poli- tician and not the well-read lawyer became APPENDIX. V. the man for the Bench, no matter for character or law (^uahiicationa, the successful niaiiouvorer in the cliange in j)olitic3, went to the House of Asseiiibly, from there seized the party (Tovernmeut machine, and from there to till a vacancy on the Bench. For instance the present Judge Wetmore, as a law student, known to possess a very super- ficial knowledge of tiic law, but naturally clever and with the tongue, especially in slang expressions, and with the books of. evidence, aeipiiring a respectable standing as nisi prlns lawyer. His llrst elfort in politics in IS(!5 was in being a violent anti-Uonfeder- atc, l)ut seeing the tide the opposite way, he became a staunch supporter of the Confederate Government, elected a member of the House of Assembly during the Macdonald adminis- tration, thence to the Local (4overnment, the accident of an accident, he finally, as a re- ward for his political aid was placed on the Bench. Now could a Bench so constituted be an able Bench ? or for a moment compare with the former judges ? You and every man will say no. What is the result ? Read the law reports to which the public funds largely coutril)ute and see what the law de- cisions luive for some years presenteil ? Divided opinions, I think, in nearly half the instances, just like a debating society. The decisions of Judge Wetmore, after taking time to consider, and, as might be expected from his law deficiencies, in very many in- stances, differing from the majority of the court, and displaying in his judgments to any sound lawyer, a lack of learning in the funda- mental principles of the law, sad to think of. What is the law in these eonllicting decisions and whose judgment is right ? In opposite opinions each cannot be right. One set of opinions do try to give death to the other. In my opinion Judge Wetmore is more gen- ei.dly wrcmg and his bretiiren more generally right. Witii such a judge then, who now proposes ^o strike off the right arm of power for obtaining truth, Ijy striking down the cross-examination by counsel, of the witness before a jury, just as the counsel is about to obtain success — at the mere will of an incom- petent, arbitrary and, perhaps, pc^litical partizan judge who might wish to destroy one side to elevate the other, would be one of the most sadly destructive changes for the worse ever known in any country — and I am truly nstjuished at the mere madness of the pro- osal ; and as to the Chief Justice I am sure i.3re cannot but be some mistake in such an I "uouncement. From long ac(j;uaintance ivuii and the strongest belief in the integrity and truthfulness of the Chief Justice, I can- not think he would propose such a suicidal law, destroying the very best power of his court ; but if I am wrong, (and the Chief Justice has not indeed contracicted such statement going round in the papers) then I must, at least, deplore his weakness, cry out against any more judge power, and bring to your notice that the Chief Justice has l)cen careless of nir very best rights and a jiarty on the bench, to the invasion without tlie legislature, of the old and invaluable rights of counsel and of juror.s and suitors, and of approi)riating them, ag;iinst law, t(j his own court, to the manifest injury of the piddic, in the wholesome administration of justice. These I will now endeavor to ex j Jain, with the authorities eiteurbridge, oK!, before ^\■etmore J., Daihousie Circuit, 1877. I was counsel for defendant, a poor man with a burtlien- Bome family, who had l)onglit the land in question, had nearly paid for it, and could not lind any one to pay the balance to and give him a deed. I was i)revented l)y the Judge from addressing the jury on the real merits of the case, because he had ruled the law the other way, Itut so far as allowed I addressed them, .stating among other things it was their right, by the law of the land, if they thought tit, to give the defendant a verdict, althougli it might be contrary to tlio Judge's opinion. I was informed they were very anxious to do so, but the lea.rned Judge came down with great wrath upon me for presuming to tell tlie jury they had a right to give a verdict against his opinion, and threat- ened them if they gave such a verdict he would not receive it, and further told them if they brought in such a A'crdict it would be perjury, or words to that eflect. I know the .Judge denied this on the Bench at Frederic- ton, but I i)ositively affirm it to be true. I remember the substance of his remarkable words as well as if uttered yesterday, and, if necessary, I can procure, such of the jury as may be living, and many others, to make affidavit to it, and there is a niendaer of your honoral)le bi^ly who heard him say so, and I may yet appeal to the Dominion Parliament on this subject. The consecpience was the jury, in terror, gave a verdict against the de- fendant. I brought the matter before the Court at Fredericton, but the Chief Justice on the authorities (Hodges vs. Ancrum and others) cited sustained the verdict. His Honor the Chies Justice ruled the same way in Doe dem Bennett vs. Murdock, Dalhousie, 1878. 8rd invasion, it was extra judicially declar- ed in a contemptible case, 187*2, Allison vs. Robinson, 2 Hannay Eep. 48.'i, without argu- ment, application or authority, that if a jury gave a verdict contrary to the ruling of the Judge at the trial on a ]ioint of law the case would be upset, no matter what the merits to to support the verdict were, the Chief Jus- tice then being one of the Judges on the Bench and confirming this case in Doe dem Moffatt vs. Tliom))son. Hence by such deci" sions wholly against the law, as continuously practiced for 70 years, or until 18()3, the jury cannot now be addressed by counsel against tlie opinion of the judge, at the trial, on a non-suit or otherwise, no matter how errone- ous his opinion may be, and if the jur^ have ample evidence for their verdict, by Allison vs. Robinson, it must be upset, if contrary to the opinion of tlie judge at the trial. This brings me to the (piestion, what is the oiiinion of a judge at the. tridl generally worth, sitting at w<.s7" priiiii — ignorant of the siibject — never having considered it, what is such an oi)inion worth ".' Generally, nothing ; practically, nothing ; .ind many times worse than noth- ing, l)y misleading the jury, and just as apt to be wrong as right, and practic.dly more apt to bo wrong than juries are, and more apt to mislead juries than to guide tliem, and, in my experience, .Judge Wetmore's ruling, moi'e wrong than any others especially. 4th. By his invasion of the jury's right to give a general verdict, which by law they have a right to do, and may refuse to give any other (see the Mayor of Devizes vs. Clark, .3 A. and E. oOfi), by giving them a long string of catechising, entraping and improper questions which a judge may put with the APPENDIX. Vll. most wicked success, to favor one side or the otlier, generally calling away and distracting their ininds from the most important istsuua in tlie case, and often entangling them in in- consistencies, which upset a verdict — Brew- ing vs. Berryman, Ladds vs. Vernon verdicts were overturned in this way, and very nearly Murray vs. Moffatt. I need not discuss tlie enormity of his mislead'ug questions in Willett vs. Lockhart, but this worst of prac- tices has, in my experience, been attended with the great evil of defeating verdicts. I have always treated it as a misdirection, and there are vastly more new trials granted for tlie misdirection of the judge than for any misfinding of the jury. On the one hard, if a direction be absolutdly wrong and tlie ver- dict be absolutely right, is it not a vicious state of the law, that a just and legal verdict for one lawfully entitled to it, must be over- turned, because the jury, in following their oaths, did not follow some incompetent judge's mis-direction, which, if followed, there would have been a new trial for the mis-direction ? On the otber hand, look at the considered judgments of the court. One judge one way, oue another ; who is right ? Look again at the judgments of the whole court on appeal to the Supreme Court of Canada : five out of seven of them (I think) hist fall reversed on appeal, and the faili'ig party was obliged to pay all the costs. If the Sui)remo Court of Canada was riiiht in law, all those considered decisions in our Chief Justices' Court were wronrj in law. In the face of the foregoing, will the Legislature pass a law for such as Judge Wetmore to gag the counsel whenever he pleases, stop him in his success, and thereby overthrow his client's just right to a verdict? In His Honor's celebrated cliarge alluded to, he read over a nu.'.^ljer of (juestions which he said he wouM submit to the jury. I perceived that many of them were as wrong in law as, I thought, foreign to the record and issues joined ; mis- leading and misdirecting in favor of the plaintiff as it was possible to be, and His Honor announced that the counsel should have liberty to jiut such (questions as they desired to suggest. I accordingly got the learned judge's permission to take the paper of questions home, had it copied and carefully prepared certain questions for my client's rights which the judge bad omitted and pre- pared myself to object to many of the judge's questions given to the jury. At the close of his charge I applied as suggested with written questions, told His Honor I wished to object to certain of his (juestions going to the jury, and submit other question^.! I liad prepared myself ; Mr. Travis said be wished to submit certain questions. His Honor asked me hrw many there were ? I think I answered 15 or 10. I do not remember Mr. Travis' number. His Honor said he would not hear me. I urged to be heard in so important a matter. He ordered me — in a most arbitratory and insulting manner — to "hold my tongue," that he would not hear me, and put his ques- tions to to the jury witiiout even looking at mine. Finding I was refused a bearing and stopped in this insulting manner I left the court to nevei after appear in tlio cause again. Here, after jjermission to be heard, is a gag and insult by the judge in the most important part for counsel's assistance, that could pos- sibly have occurred in the cause. Hence the kind of judge that wants power to stop coun- sel on cross-examination. As it is* very de- sirable to check, if possible, new trials for insulficient causes — a great many having been granted for improper admis.sion of evidence M'hen there was ample to sustain the verdict without such evidence — I think it would be wise to alter the law in this particular and adopt the rule laid down Ijy Lotds Chief Jus- tice Mansfield and Tyndale. Also to have the law enforced concerning equitable de- fences in a court of law. It seemed remark- able that a law of the highest intelligence, conformable to PjUglish and Irish law pro- cedure, and to the surrounding Provinces, passed in 1873 by the Government, of which the Hon. Judge King was Attorney General and leader, and of whose natural wisdom and ability I have long had a very high opinion, and who, I am CDufident, will become a very valuable ac([uisitii)u to the bench, seconded by the wisdom and ability of the present Hon. Attorney General, a most excellent law, as I have always viewed it, containing more useful improvements in the administra- tion of justice tlian any otiier I ever knew, passed by the Legislature ; I mean a portion of the Conunon Law Procedure Act of Eng- land, but which never seemed to meet with any favor by the Court, in passing rules or otherwise, for the bcneticial working of it, or of authorizing its other wholesome pro- visions as by our Legislature empowered, and by duty required, One part of this excellent law provides tliat if a poor man, like the de- fendant, in Doe vs. Th(>nq)son, cited above — draggeil into law — having a good equitable defence, he might set it up there, and not be driven to bring a suit in Equity. But, strange to say. His Honor the Chief Justice, in pronouncing judgment against tlie defend- ant in the last-named case, and observing that he might go into a Court of E(iuity, said nothing as to why his court had neglected to declare the rule to make such a defence available in law, as passed by our Legislature, and why this man should suffer ? Strange also to say that His Honor some year and a half ago, before the Grand Jury of St. John, to my utter astonishment, re- commended, not the new Judicature Act of England, now in force there, but the repeal of the common law procedure act and a re- turn, as I understood, to our old wretched practice, as (saith St. Peter) "the dog re- turneth to his vomit again and the washed sow to her wallowing in the mire ;" not be- VUl. APPENDIX. f .. cause tliu pn)visions of the law were not ex- cellent, but an the iniblic thouglit, the (.'liief Justice meant the Bench and the Bar. I repel tliis reilection on behalf of the Bar of New Brunswick, but it unfortunately seeins to harmonize with the state of our law deci- sions, and tlie reversal of our jutlgnients. The Legishiture will be obliged, I tliink, to interpose and give power in the right direc- tion. My prayer then to the Ix;gislature and to yon, for tlie better administration of justice, is to declare tiui law as folltiws : — 1st. Not to empower a .Judge to restrict the right of examining or cross-examining witnesses. 2nd. To restore counsel'a right of address- ing a jury for his client, and the jury to Hnd a general verdict if they see fit, notwith- standing a non-suit or other ruling of the Judge to the contrary, in any stage of tlie trial. 8rd. That every verdict shall be consider- ed upon its merits, and shall not be set H^i'l on the mere ground that it is contr. vy t( opinion of the Judge at the trial. 4th. That the juiy shall not Ix; requii . I uu find upon any, special (piestiou, put by a Judge, or otherwise than a general vc. .a-^-t, and no such (questions shall be put l>y a Judge to the jury unless by the consent of both parties, their attorueya or counsel. oth Tliat no new trial sliall be granted on account of the admission of evidence which ought not to have been received, j^i'f^'ided there be sulHcient evidence without it to authorize the finding of the jury. Cth. That any defendant in any action shall be entitled to insist upon an e(iuitable right or defence in any case, as provided for by the Consolidated Statutes of New Brunswick, cap. 37, and sliall not be re.iuiretl to go into a Court of E(piity to av.iil iiimself of any equitable defence which h.j nuiy have to any legal demand attempteil U> be enforced against him. Your very obedient servant, David S. Kerr. TUB ICKaiT.S Ol JIKOUJ). To the Editor of The Tel&jraph and M. P. P. for the Citi/ and Count ij of St. John. Sir : Pursuant to my late application at Fredericton to the Attorney General, your- self, and other honorable members of the House of Assembly, to amend the law for the better administration of justice in regard to the rights of jurors, etc., enumerated in my letters to you in the Daihj Teleijraph of the 14th ult., with the authorities there referred to, I think it proper to give you the sub- stance of those authorities, rather difficult to obtain, upon jurors' rights, to find on (pies- tion of law, and the consequent nghts of counsel, to address them thereon, though contrary to the opinion of the judge at the trial. In Littleton (the highest authority knowK in tlic law), section .'3S{J, it is laid down that, " Wiien the inquest (the jury) may give their verdict at large, if they will take upon them the knowledge of the law upon the matter, they may give their verdict generally, as is just, in tlieir charge, as in the ease afoi'esaid, they may well say the les.^or did not desseize the lessee, of thy will," etc. Lord Coke, in his comment on this section, 228, says : "Although the jury, if they will take upon them (as Littleton hath saith), the knowledge of the law, may give a general verdict, yet it is dangerous for them to do so, for if they do mistake the law they run into the danger of an attaint," but this reason of terror has long since ceased, for attaints of juries, having been reduced, for more tlian two centuries, to a mere sound, were wliolly abolished by 6 George p. 4, eh. 50, leaving- the rights of jurors to act on their own knowledge of the law, freely open to them.) BU.S'IELI, CA.SK, VAXCJHAN REPORT, 185, HABEAS CORl'U.S. At a Court of Oyer and Terminer, pursuant to a Hojal Commission, before the Mayor and Kec'irder of London and others of the com- mist ' I at the OKI Bailey (22 Charles 2nd, A, I' .'()70) "pon an indictment of the king agamst Ai.iiam Penn and William Mead, charging them with certain trespasses and contempts, unlawful assemblies and tumults, to whieli they pleaded not guilty ; anil Ed- ward Bushell and eleven others being sworn to try the issue, after hearing the evidence and charge of the Couj't in favor of the Crown ^-contrary to law (as was alleged in the re- turn), and contrary to full evidence and the direction of tlie Court — acijuitted the said. I'enn and Mead, for wliich the Court fined the said Edward Buslicll and the 1 1 other jurors 40 marks (aniduiiting to alx>ut £83 4s. currency) apiece, and conmiitted them to Newgate Prison until the lines were paid ; whereupon Bushell obtained a writ of habeas corpus, had himself lirouglit l)efore the Lord Chief .Justice Vaughan of the Common Pleas (a most eminent judge) ; the matter was fully argued by very able counsel on either side, before ten of the judges of England, including the Lord Chief Justice, principally on the grounds whether the Court of Oyer and Ter- miner had power to line and imprison the jurors for giving a verdict contrary to evi- dence and contrary to the opinion of the Court on the trial ; and, in one of the most learnedly-considered judgments by the ten judges I ever read — tracing the law during many centuries down through the earliest English records, text books and reports to the time of decision — -unanimously adjudged that the fines and imprisonments of Bushell and the other jurors were unlawful and ac- cordingly discharged them. The case is very lengthy and full of learning, occupying 22 quarto pages of black letter, upon numeroua APPENDIX. IX. known n that, vo their n them matter, y, as is ;)resaiil, ilcssoize seetion, ley will th), the general ;o do so, un into easou of ;aints of )re than wholly- leaving eir own them. ) , UAUEAS pursuant ayor and the coni- i-les ^nd, the king Mead, ,sse9 and tumults, and Ed- ng sworn evidence he Crown n the re- e and the the said, (urt tined • 1 1 other it £3:^ 4s. them to ere paid ; of habeas ; the Lord mon Pleas r was fully ither side, ineluding lly on the r and Ter- prison the ,ry to evi- ion of the E the most ly the ten law during he earliest reports to y adjudged of Bushell ful and ac- case is very icupying 22 a numerous instances of liability and right of Judges aa well as jurors, whicii had occurred, and after giving many, of .Judges impeached and dis- missed for corruption and misconduct, during the times of King Alfred (before tlie con- (jucst), Edward tiie 1st, Edward the .3rd, IMchard the 2nd, .lames 1st and Charles 1st (to wliich maybe added tlie corrupt Judges of .Fames 2nd), and dividing jurors duties into, 1st ministerial acts, such as to attend and be sworn as jurors, remain together to consider their verdict and give it if they can and the like, the breach whereof or otlier wilful wrong was a misdemeanor, for wliicli they were liable to tine or imprisonment for con- tempt of court, or to answer to a criminal in- formation. 2nd, judicial acts, such as hear- ing tiic evidence, considering tlieir verdict and giving it if they can according to their conscience and the like, in doing whereof they were in no case liable to tine or impris- onment, but had as good a judicial riglit to the proper exercise of their con.sciencious opinion, as the .Judge hay my aforesaid letter, is wholly against law a very serious harm to the rights and privileges of the subject, seeking justice, and calls for correction, I am, very respectfully, David S. Kerr. St, John, N. B., March 10, 1881.* ''Note.— In the wiexpecfed suddenness of theHnnor.ible Mr. Elder's death, itis j?«( I should mentian,tha.t the piiMie are indebted to his inemnry and to hls/nmih/, for the publication of tlio many letters I addressed to him, aa Editor of the I'degraph—matericdli/ affecting the public iveal—awl that thCi^e, with the foregoing matters, were all inserted by liim in his widely circulated paper, without reward, and with no other spirit than for the pvblie (jood.—D. S. K. Hhrata.— For Wasou vs. Walker in the arguments read Wason vs. Walter. '), it is it if the point of ,0 tiiul a [lat is a ^v trial ; , directs tlly, and s a Fulfi- But to titations, s, that if kinly and the jury 1, and it rt, under nrins are Loubtedly it a new le parties ext judge mer, and be a new ardwicke, Smith vs. , 2 Wilson Ig8, it has : the jury iff, upon a the court aintiff was nd equity, azzarine, 2 3., and P. nany other •ant a new lontrary to iiity of the id on ques- ; rights to lia attorney .tided to be ; first Royal nlishing the 874, and so lere for 79 ged except lever done ; now used, i letter, is harm to the |ect, seeking S. Kerr. antian, that the aased to him, as Bgoing nmttera, ■it than for the