IMAGE EVALUATION TEST TARGET (MT-3) V 1.0 I.I 1^121 125 ut Ui 112.2 Z !<£ 12.0 U& IL25 III 1.4 1.6 «■ ^ V4 A % cp Photographic Sciences Corporation «■ 33 WIST MAIN STRUT WnSTH.N.Y. MSN (7U)a73-4S03 CIHM/ICMH Microfiche Series. CIHM/iCIVIH Collection de microfiches. Canadian tnatituta for Historical IMicroraproductions / Inttitut Canadian da microraproductions historiquaa Tachnicai and SiuSSes'spM*? Notaa/Notat taehnin'jss a: tiblioflsaphiquaa Tha Inatituta haa attamptad to obtain tha baat original copy availabki for filming. Faaturaa of thia copy which may ba bibliographically uniqua, which may altar any of tha imagaa in tha raproduction. or which may aignificantiy changa tha uaual mathod of filming, ara chackad balow. SColourad covara/ Couvartura da coulaur r~n Covara damagad/ D D D D Couvartura andommagAa Covara raatorad and/or laminatad/ Couvartura raataurAa at/ou pallicuiia nCovar titia miaaing/ La titra da couvartura manqua r~~| Colourad mapa/ Cartaa g^ographiquaa mi coulaur Colourad ink (i.a. othar than blua or black)/ Encra da coulaur (i.a. autra qua blaua ou noira) □ Colourad plataa and/or illuatrationa/ Planehaa at/ou illuatratioiia 1% coulaur □ Bound with othar matarial/ Rail* avac d'autraa documonta Tight binding may eauaa ahadowa or diatortion along intarior margin/ Laraliura sarria paut cauaar da I'ombra ou da la dlatorakin la king da la marga Int4riaura Blank laavat addad during rastoration may L^4 appaar vwiiinin tha taxt. Whanavar poaaibla. thaaa hava baan omittad from filming/ II aa paut qua eartainaa pagaa blanchaa aioutiaa lora d'una raatauratlon apparaiaaant dana la taxta. mala, loraqua oala Atait poaaibla. caa pagaa n'ont paa «t« filmAaa. Additional eommanta:/ Commantairaa suppl^mantairaa; L'Inatitut a microfilm* la maillaur axamplaira qu'il lui a itA poaaibla da aa procurar. Lat details da cat axamplaira qui sont paut-Atra uniquaa du point da vua bibliographiqua. qui pauvant modifier una imaga raproduita. ou qui pauvant axigar una modification dana la mithoda normala da filmaga aont indiquAa ci-daaaoua. □ Colourad pagaa/ Pagaa D Pagaa da coulaur Pagaa damagad/ Pagaa andommagtea □ Pagaa raatorad and/or laminatad/ Pagaa raataur^aa at/ou palliculias Pagaa diacolourad, atained c^ foxad/ Pagaa dAcolor4aa. tachat^at ou piqui piquiea □ Pagaa datachad/ Pagaa ditachiaa EShowthrough/ Tranaparanca Tranaparanca Quality of prin Qualiti inAgaia da I'impraaaion Includaa aupplamantary matarii Comprand du material aupplAmantaira Only adition availabia/ Saula Mition diaponibia rn Quality of print varias/ rn Includaa aupplamantary matarial/ I — I Only adition availabia/ Pagaa wholly or partially obacurad by arrata alipa. tiaauaa, ate. hava baan rafilmad to anaura tha baat poaaibla imaga/ Laa pagaa totalamant ou partiallamant obacurciaa par un fauillat d'arrata. una palura, ate, ont <*t* filmAaa A nouvaau da f«9on k obtanir la maillaura imaga poaaibla. Thia Itam ia filmad at tha raduction ratio chackad balow/ Ca documant aat film4 au taux da rMuotion indiqu* ci-daaaoua. 10X MX IfX 22X 2bX »x ' / • 12X 18X aox MX aix 32X ails du idifier una nage Tlw copy filiiiad h«r« has b««n raproducad thank* to tha ganaroaity of: NflWf Bruniwiek MuNum Saint John Tha imagaa appaaring hara ara tha baat quality poMibia conaidaring tha conditiofi and lagibiUty of tha original copy and in Icaaping with tlia filming contract tpaciflcationa. Original copiaa In printad papar covara ara fllmad baginnlng with tha front eovar and anding on tha laat paga with a printad or llluatratad impraa- •ion, or tha back covar whan approprlata. All othar original copiaa ara fllmad baginnlng on tha first paga with a printad or llluatratad Impraa- aion, and anding on tha laat paga with a printad or llluatratad impraaslon. L'axamplaira fllm4 f ut raprodult grica A la g4niroaiti da: Naw Brumwiek Mutaum Saint Jolin Laa imagaa aulvantaa ont 4tA raprodultaa avac la plua grand aoln, compta tanu da la condition at da la nattat* da l'axamplaira filmA. at 1% conformitA avac laa eondltlona du contrat da fllmaga. Laa axamplalras origlnaux dont la couvartura it paplar aat ImprlmAa aont fllm4a an comman^nt par la pramiar plat at an tarminant salt par la damlAra paga qui eomporta una amprainta dimpraaaion ou dllluatradon, aoit par la aacond plat, aalon la eaa. Toua laa autraa axamplalraa origlnaux acmt fllmte mn eomman9ant par la pramlAra paga qui eomporta una amprainta dimpraaaion ou dtlluatration at an tarminant par la damlAra paga qui eomporta una talla amprainta. Tha laat raeordad frama on aach mierofleha •hail contain tha cymbal «^ (moaning "CON- TINUED"), or tha aymboi ▼ (moaning "END"), whichavar appHaa. Un daa symbolaa auhranta apparattra Mr la damMra Imaga da chaqua mierofleha, aaton la eaa: la aymbola -n». algnifia "A 8UIVRE", la •ymbola ▼ aiqnifia "FIN". Mapa, piatas, charts, ate., may ba fllmad at diffarant reduction ratioa. Thoaa too large to ba entirely included In one expeeure ere filmed beginning in the upper left hend comer, left to right end top to bottom, ea many framae aa required. The following diagrama iiluatrata the method: Lee cartae. planchae, tabieeux, etc.. peuvent Atre flir>i4e i dee taux da rMuctlon diff^rents. Loraqua la document eet trop grand pour Atre reprodult en un soul cHclMft, 11 eet fllmi A partir da Tangle eupArleur gauche, do geuehe A droite, et do heut en bee, en prenent le nombre d'Imegee nAcessalra. Lee diagrammae suivants lliuatrent la mAthoda. rrata o >alura, I A 3 32X 12 3 1 2 9 4 5 e "'-■^^ •^ w*f^-^-, 1^^ ,^'P^' *r.^ w^4 ^ *! >', "'- :ift ;'*' r?/ ' X: s^5{^ '-'; ■. ■■,■ ..'-•■ •ifc.i''- ■ ..V >.. #21. .' ■,-;-r."-':*.-~v; /a ,-, ^^i-W'-:-: .•.■„•.•,;.><•.■■■ ■ -?' 'i; "^ . A>*ji ,'■■■', , ' ■■:■■■ LETTER FROM THE MASTER OF THE ROLLS, New-Brunswick, ,:< ,, HIS GRACE THE DUKE OF NEWCASTLE, Her Majksty's Srchrtary op State for the CoTiOxiES, \ . '- , ' ■ :^"' *■::■■■ ■■■■ ■ VK' ,<- ■' . ' ''- ' ■ '■'■ • '■'. i '* ■ --;.\ .'■ ■ ■ ' " ■ . ,, ■• * ■ ■ ,/ ■■/■ ■ y^-- ' a- > ■ *•■;' -^ jTHE ACT OF ASSEMBLY, 17 VIC, CAP. LXVII., " Relating to the Administration of Justice in Equity/' -/ - '«^ ■•i J. & A. McMillan, Printeri, Prince Wm. Street, St. John, N. 9« 4- ,,v I .1 THE W BBUNSWIOK J I LETTER. Fredericion, New Brunswick, May IGth, 1854. MY LORD duke- It is with great reluctance that I find myself under the necessity of trespassing on Your Grace's attention. An Act has passed the Legislature of New Brunswick, during the Session just closed, which materially affects my private rights, and involves considerations of great public interest. The circumstances are as follows: In March, 1838, an Act was passed, (1st Vic. c. 8,) to authorize the appointment of a Master of the Rolls in this Province, and to provide for such officer. By the first Sec- tion, the Lieutenant Governor was authorized "to appoint, " and in case of vacancy by death, resignation, or other " cause, to appoint anew, a Master of the Rolls in the Court " of Chancery in this Province, who should hold his office "during good behaviour;" such person, so from time to time appointed, to be " a Barrister of ten years standing « at least." By the second Section, that officer was to " have the like " powers and authority in respect to the Court of Chancery " in this Province that the Master of the Rolls in England " has in respect to the like Court in that country," except so far as the same might be altered, enlarged, curtailed or regulated by the Legislature, at that or any subsequent Session. By the third Section ho was constituted, except on ap- peals from his own decisions and hearings thereon, the responsible adviser and Judge of the Court. By the fourth and fifth Sections, for the support of this officer there was granted to the Lieutenant Governor, or person administering the Government for the time being, the sum of eight hundred pounds currency, annually, pay- able to the Master of the Rolls by quarterly instalments, by warrant under the hand and seal of the Lieutenant Gov- ernor upon the Treasury of the Province ; such salary to be " in lieu of all fees of office.'* This is the first high judicial office authorized and pro- vided for by an Act of the Legislature, and Your Grace will perceive that the appointment, (departing from the precedent of that of the Common Law Judges, whose com- missions run "during pleasure,") was to be held by a permanent tenure. It was further declared, that the Master of the Rolls should be ineligible to hold a seat in either of the Councils or in the House of Assembly. By an additional enactment of the following year, the right of appointment was to be in the Crown, saving, however, the rights of the officer already appointed. I had the honour to be selected to fill this office, as the first Master of the Rolls under the Act, and, I need hardly add, that in accepting it, my professional rank and practice at the Bar were necessarily sacrificed. The appointment moreover involved a relinquishment of my position as a member of the Government, and also a change of residence from Saint John to this place, which latter was made ex- pressly necessary by the additional Act already referred to. These several Acts received the sanction of Her Majesty's approbation. On my acceptance and entering upon the duties of this office under my commission, I became, by law, vested with all the estate, rights and privileges attaching to a judicial office held during good behaviour. I have ever since dis- I thi» with iicial dis- charged its duties, and am ready and willing to continue to discharge them. These rights are clear and well defined : an estate, virtually for life, in the office, with its emolu- ments and advantages, is created in the incumbent, to be held and enjoyed on the condition of the faithful perform- ance of its proper duties. On breach of this condition, or in case of resignation, this right ceases altogether. The officer may or may not, in the latter event, be entitled to a retiring allowance, according as the Law or the Royal favour may have determined. If, on the other hand, the office is neither forfeited nor resigned, and the officer is neither unwilling nor incompetent to discharge its duties, but it is deemed for the public interest and advantage that the office should be abolished, the case then is wholly dif- ferent; the condition on which it was conferred remains, it is true, thenceforth unperformed, but it is so, not through fault or failure on his part, but because its performance has been rendered impossible by a sovereign act of legislation to which the Judge is no party. In such case it would seem inconsistent with justice that the public should thereby relieve itself from the obligation which it has contracted, and that the right to those emoluments should be forfeited. The true principle which governs such cases appears so plain, and has been so recently acted upon in t he abolition of the office of the Masters in Chancery in En , 'land, and even of that of their chief clerks, that it is quite unnecessary to do more than refer to the Act of 15 and 16 Vic. c. 80. This secures the continuance of the whole amount of the salaries of these officers to them for life. The position of an officer holding during good behaviour is greatly understated by the common mode of considering it as secured merely by compact^ and by speaking of the invasion of his rights only as a breach of contract. It is something much more. But I will ask Your Grace's atten- tion to the individual case in hand. The Act of 1st Vic. c. S, already referred tO; passed at the instance of the Crown. On an application by its repre- sentative, a permanent grant was made to the Lieutenant Governor, of a fixed annuity for the purpose expressed in the Act. And the Queen's Representative, (being so provided with the necessary means,) by the express author- ity of the Law made a permanent grant of the office, with its emoluments, thereby conveying to the person selected a freehold estate therein. The question is thenceforth, not what the Crown shall do under agreement, but what it has already done. It is not a question of contract but of title : not of the future granting of the salary, but whether it can resume without a forfeiture what it has already granted : my appointment I thus hold not merely by force of the law, but on the faith of the Crown, fully armed with the means of my protection, for of the grant so made to it, the Crown can never be deprived, except bt/ the assent and act of the Crown itself. Enjoying such a title, a Judge feels that it is protected by every safeguard that secures to him his house or his land, with the further assurance that the preservation of his rights, from the public considerations which surround them, is of infinitely greater moment than of those of any private individual whatever. The language of the Act 15 and 16 Vic. c. 80 (sec. 4), already referred to, is very significant. The retiring Masters shall thereby "continue entitled'' to receive during their lives by way of retiring allowance, their salary and compen- sation allowances; and by the next section the salaries, &c., shall "continue'* to be payable out of the same funds on the days and in the same manner as their present salaries and compensation allowances respectively. I now respectfully invite Your Grace's attention to the Act just passed entitled <' An Act relating to the administra- tion of Justice in Equity." By the first section of this Act, first chapter, the Court of Chancery is summarily abolished, and the jurisdiction trans- ferred to the Supreme Court, under the title of the "Equity side" of that Court. B of Lns- The 7th section is as follows : < 'inmiiiwwniiMiii * 'H;i*^*? '■..J'J^* lie tribunal such as the judicial Committee of the Privy Council. I am sensibly impressed with the great disadvan- tages under which it must be attempted at a distance and on paper, under the pressure moreover of an Act, which has already received the assent of Her Majesty's Representa- tive in the Province, acting on the advice of his Council. A discussion which must proceed on my part (unless an opportunity be afforded through Your Grace's favour,) without the means of knowing or answering the arguments which may be urged by those with whom on this occasion 1 have the misfortune to differ. The peculiarity of my situation must be my excuse if I am constrained to enter somewhat more at large into this subject than may consist either with Your Grace's leisure or my own wish. I beg permission in the first place to state the personal reasons of my objection to the change, before touching on others of a more general nature. On entering upon the du- ties of my office, from the absence of precedent in a Court which had been then for the first time placed under a Judge exclusively devoted to Equity, a task of no ordinary diffi- culty devolved on me in the adoption and application of English principles of jurisprudence, as modified by local circumstances and Provincial enactments, and in framing rules of practice. A statutory jurisdiction was created, and from time to time enlarged, first by the establishment of a system of Bankruptcy which was after some years succeed- ed by an entirely different enactment, though with a some- what similar object: these came to be administered by myself while they remained in force. Both are now abol- ished, but a similar law may at any time be renewed. An appellate jurisdiction was also created, whereby an appeal was given to the Court of Chancery from the Surrogate and Probate Courts established in the several Counties in the Province. All these various duties, with others connected with my office have abundantly and exclusively occupied 8 V ii my attention during the last sixteen years, and withdrawn it entirely from the practice and proceedings of Common Law. Another circumstance which I may be allowed to men- tion is that my brother, the Honorable Robert Parker, having been appointed to the Bench of the Supreme Court in 1834, of which Court he has been since and still is one of the Judges, and this being the only superior Court of Com- mon Law in the Province, I never from that period looked to a seat on the Common Law Bench, considering that such an arrangement would be obviously objectionable. This opinion I have seen no reason to alter, and am convinced that, however it may have been recommended by reasons of temporary convenience, we should soon be made sensible of the public dissatisfaction that would naturally arise. Under these circumstances, independent of any other grounds of objection, it will not, I trust, be deemed surprising or unreasonable that 1 am not prepared to undertake the duties of a Judge of the Supreme Court, and the administration of Criminal and Common Law. That I was justified in this exclusive devotion to the business of my own Court, I think will be more apparent from the circumstances under which the office of the Master of the Rolls was established. The Lieutenant Governor, Sir John Harvey, in his message to the House of Assembly, dated 18th January, 1838, as appears from the Journals, page 72, pointed out as a great defect, the manner of then conducting the Chancery business. He observes, " The "Lieutenant Governor is under the necessity of delegating "his judicial functions as Chancellor to the Judges of the " Supreme Court. This arrangement presents the incon- ^^gruity of the Common Law and Equity jurisdictions *' being vested in the same persons, while these two systems "of jurisprudence depend upon principles and are adminis- "tered in modes widely differing from each other. This " incongruity is strikingly exemplified in the case, by no i 9 the larent aster irnor, ibly, Irnals, then !*Tho ;ating if the \ncon- tions Istems linis- This »y no "means uncommon of the Court of Chancery being called "upon to restrain proceedings in the Supreme Court. « Great difficulties and delays also are constantly occurring "to suitors, from the want of a judicial officer whose time "and attention maybe distinctly and uninterruptedly devoted " to the business of the Court of Chancery.'* In the report of the Select Committee to whom the Mes- sage was referred recommending making provision for the appointment, they observe that the duties of the Chancery Judge "will require the undivided attention of a professional man." It was on the force of these considerations the office of Master of the Rolls was created. I may be ex- cused I think for not expecting the reproduction of the incongruity thus forcibly exposed, which it is the avowed object of the present measure to re-establish. It has no doubt been considered by the framers of this measure that, inasmuch as the salary is to remain the same, this enactment, to whatever other observation it may be liable, is free from the objection of infringing a private right ; that the new office is a full compensation, and that it there- fore works no individual injustice. The foregoing details will I trust have shown that this reasoning, even if good in another case, which I do not admit, is in the present instance wholly fallacious. While however voluntarily offering these explanations, I must most respectfully protest against being held bound to vindicate myself for declining to acqui- esce in the present enactment. Holding, as I do, an office for life, this is, I apprehend, entirely unnecessary. But the act is manifestly of a character both arbitrary and unconstitutional : arbitrary in taking aAvay rights and imposing involuntary duties, and unconstitutional, first, because (besides other anomalies) in lieu of placing the ap- pointment of the additional Judge where, by the constitution of the Supreme Court, that of the Chief Justice and other Judges resides, namely in the Queen, the Act itself appoints the fifth Judge ; and secondly, because it is a judicial office, j i f 10 and one vested with the highest powers, and not a minis- terial office which is thus imposed, entirely independent of the sense entertained of his own qualifications by the party appointed. It is unnecessary to point out, however desirous a Judge might be to perform his duties, how serious a tendency such a mode of appointment must have to diminish judicial responsibility. But I may be pardoned if I presume to occupy Your Grace's attention with some further considera- tions of much moment. The deep conviction I feel of the importance of the questions involved will, I trust, plead my excuse. It is well known with how much jealousy what- ever has a tendency to affect the great principle of judicial independence is regarded in England. Established on a firm basis at the Revolution, and signally strengthened at the commencement of the reign of King George the Third, it has become part and parcel of the Constitution. How vastly the welfare of the Mother Country has been thereby promoted, it is impossible to estimate. It is not too much to say that in proportion to the influence of this principle in a great measure will be the prosperity and happiness of any people. A moment's consideration of the nature and constitution of a Colonial dependency, and what has passed in New Brunswick as well as elsewhere, will show that its protec- tion from injurious influences must here require at least an equal watchfulness, and that it cannot with safety be left to local authorities. The preponderating power of the popular branch of the LegislatUiii, in a country where the counterpoise of a ror- manent aristocracy is entirely wanting is everywhere ac- knowledged. More particularly must this be the case in New Brunswick where the members of the Second Cham- ber, the Legislative Council, so far from holding their posi- tion as in England by an hereditary and inalienable right, aie appointed from time to time, virtually on the recom- J' 8 11 c fl ie Si 11 mendation ; the majority of the House of Assembly, that appointment being not even for life, and the members of the Council being free at their discretion to resign their si- tuations in order, as has been the case in several recent instances, to become members of the House of Assembly, The Queen's Representative, however highly qualified for his office, cannot be expected to be perfectly unbiased even in cases like the present, by the political influences which immediately surround him. Nor, however just his views, can he always act effectively and decidedly on the convic- tions of his own mind. The Judges are entirely removed from any part in legislation by their exclusion without excep- tion from both branches of the Assembly. The avowed rea- son for this exclusion is that they may be separated entirely from the political arena and devoted to their proper duties. Whatever the advantage of this arrangement to the public, the necessary consequence is that measures may be intro- duced in which their rights a:e materially involved with no one to protect or maintain them. In England there is no doubt the Judges may rely with perfect confidence on the protection of the Government, in the unlikely event of their being assailed. But in this country, as in other new coun- tries, where subjects of this kind have not been deeply con- sidered, very different views are entertained, on this as ott other points, and a reference to the following circumstances will show how little a Judge can look with confidence for support from that quarter. In 1849 a Bill was introduced by the Government, which passed the Legislature, for the prospective reduction of judicial salaries. An amendment was moved by the Oppo- sition that the reduction should also apply to the present incumbents. This however was successfully resisted by the Government, and the Bill passed as introduced, affecting only future appointments. On the following year, to the aston- ishment of those who were then members of the Bench, a series of resolutions was iiuroduced by the Attorney Gone- •' l' J .| : |i^^ 12 ral, the leader of the same Government, one of which had for its object the very purpose which had been resisted the year before. This unexpected proceeding was announced expressly as a Government measure. As no opportunity was afforded the Judges of offering any remonstrance to the Government previous to its introduction, I was compelled, in defence of my own rights, to resist, in limine, both on public and personal grounds, a measure of the Government, or to submit tamely to the infringement of my rights by the Legislature, ignorant as to what might have passed between the Colonial Office and the Lieutenant Governor to account for such change of views. Placed thus in circumstances where I could look for no support within the Province, I strenuously resisted, before the House, the passage of the resolutions, first, as violating public faith; secondly, as aim- ing a direct blow at judicial independence ; thirdly, as establishing a Colonial standard of honesty, wholly inde- pendent of that which had ever prevailed in England, — a course entirely inconsistent with our Colonial relations. Notwithstanding niy opposition, and although it was strenuously opposed by one member of the Government, yet, supported as the measure was, it passed the House of Assembly by a large majority, as did also the Bills subse- quently introduced founded thereon. These Bills failed in the Council, and the matter thus terminated. It has since appeared, by documents acccompanying a Message from the Lieut. Governor, printed in the Journals of 1851, p. 140, that this measure was expressly disapproved by His Excellency, that that disapproval was declared in Council previous to its introduction, and that His Excellency considered it, first, as implying a breach of the Civil List compact ; secondly, as inconsistent with the faith of the Crown ; and thirdly, as violating judicial independence. Such then is the peculiar position of a Colonial Judge in New Brunswick, and his attention is liable to be continually distracted from his proper duties in order to defend himself f "tKX*, *l*f^t^^^ 13 of in the icy, ks to irst, Idly, le in lally keif against those who, of right, should be his protectwrs. The Executive Government then comprised the Attorney and Solicitor Generals and two Queen's Counsel; and six of the nine members — the entire number — were lawyers. It could not be supposed by the lay members of the House, that a measure proposed under such auspices could be deemed either inconsistent with public faith, or open to any consti- tutional objection. Although this Bill did not pass the three branches, the resolution remains on the records of the Assembly, unrescinded, as a dangerous precedent. It could hardly have been expected that these Bills, even if they had passed here, would have been approved by Her Majesty, as they were contrary to the tenor of every despatch from the Colonial Office on the subject of the Judges salaries, and would have entirely destroyed all se- curity whatever on their part. The introductory resolution already alluded to was adopted apparently without division. It affirmed " that the salaries of public officers ought at all times to be subject to such modifications by the Legislature as the exigencies of the Province and the duties performed may render necessary, irrespective of the tenure by which such officers hold their appointments ;" and it was in ac- cordance with this principle that it was further resolved that the salary of the present Master of the Rolls should be reduced by the sum of two hundred pounds. Although partial changes have since been made from time to time in the Executive Government, and the present Attorney General has strenuously opposed the reduction of salaries except prospectively, the Solicitor General and two Queen's Counsel, with the Provincial Secretary, who were members of the Government in 1850, still remain. The Solicitor General has been the real head of the Law Com- mission, and another of the three members whose names ar. affixed to the Report was also a member of the same Government. It is not at all to be wondered at that the members of that Government should have perceived no 14 k.(t I legal or iSiconstitutional difficulties in dealing with a Judge in the manner proposed in the present Bill. " The public exigencies," or what the Legislature may consider as such, may sanction any violation of judicial rights, and the pro- ceeding! of the Government in 1850 was vindicated in the House of Assembly by the startling announcement of one of its members that the salaries of Judges, as well as themselves, were public property : a doctrine which, with the practical comment by which it was accompanied, would reduce the position of a Judge in regard to the rights con- ferred by the Royal Commission, below the level of any other subject in Her Majesty's dominions, and degrade the public servant to a public slave. It is not quite unworthy of notice that in the Colonies the leading members of the Assembly in both branches are, very generally, practising lawyers, and in this country as well as almost everywhere else, the same individual combines the character of Attorney and Barrister. Their influence in a country where the higher advantages of education are not so general is not to be measured by that of the same classes in the British Parliament. In the Government, as we have seen, they very lately formed the proportion of two-thirds of the whole. Five, out of the nine members of the Exe- cutive Council, are now lawyers. It is not to be denied that the talents and habits of business of this class of mem- bers justly secure to them very great weight. In looking, however, to a measure like the present, and to the prece- dent it would establish, can it be either wise or safe that the Judges should be thus placed in the power of those who practice before them ? Without questioning for a moment the general good feeling of the members of the profession, it is not easy to imagine any thing more likely to lessen the just influence of the Bench, to foster judicial subser- viency, and to weaken public confidence, than the admission of a principle which, while it transfers from the Crown its legitimate prerogative, arms a popular body thus composed ^m.w nent ion, ssen )ser- ision nits osed 15 with the formidable power over tlie Bench whicl^ is exer- cised in the present instance. A measure of this nature is not limited in its conse- quences by the bounds of a single dependency. It is felt throughout every part of the Colonial dominion in v/hich Representative institutions exist, and the case becomes that of every Judge it contains. A precedent here established, on the pressure of local considerations, cannot be resisted by Her Majesty's Government elsewhere. The right cou- ceded in a single instance at once becomes the common property of every local Legislature ; and once yielded, is irrevocable. In this country no provision exists for a retiring Judge, however long and meritorious his services. However wise the policy of such provision, although recommended by the strongest claims, its establishment has hitherto been strenu- ously and successfully resisted. If, in addition to this discouraging circumstance, a Judge willing and not incom- petent to continue the discharge of his proper duties, may be at any moment deprived of his situation on any other terms than that of retaining his emoluments for life, the temptation to leading men at the Bar to accept so preca- rious a situation will be very sensibly diminished. I am not at all insensible to the inconveniences which may be urged on Her Majesty's consideration against with- holding the Royal assent to this Act, and that the mainten- ance of a judicial right, and the far greater public conse- quences which it involves, are liable to be overshadowed by the political considerations which surround it. But Her Majesty's Government, however increasingly disposed to yield political rights to the Colonies, and the power of self- government, has hitherto done it with the important reserve of the rights of the judiciary ; and the wisdom as well as justice of this reserve has been more and more seen and appreciated. Although the appointing of a Law Commission was a 16 Gorernment measure, and though the new measures for the alteration of the law prepared by the Commissioners were introduced by the Attorney General, yet they were not introduced as measures for which the Government, as such, held itself responsible ; but on the contrary, the Attorney General claimed the right to exercise his own free judg- ment as to supporting or opposing the several changes proposed. Against his opposition it was determined that this Act should go into effect on the first of September next, prior to the next Session of the Legislature, while he, on the contrary, contended that it should not take effect until after that period. The Attorney General also in vain contended that a clause should be added suspending its operation until Her Majesty's pleasure should be known. I do not understand how the passing of an Act of this nature, without such clause, can be reconciled with the posi- tive instructions of Her Majesty to the Lieutenant Gover- nor ; but I feel satisfied that Her Majesty will not permit the interests involved to be compromised through the undue pressure which this circumstance has a tendency to create. Independent of the objections which I have thus laid be- fore Your Grace, the change proposed in the Courts has been considered by the learned Judges of the Supreme Court, as well as myself, as so little calculated to improve the administration of justice, that it has called forth an earnest and united remonstrance against the passing of the Bill, a copy of which I beg to transmit herewith, to which, as well as the other documents referred to in the subjoined sched- ule, I crave leave to refer. I had hoped the reasons therein given would have rendered any proceeding on my part like the present unnecessary. Its postponement for more de- liberate consideration can be productive of little possible inconvenience. Whatever temporary disappointment may be experienced should Her Majesty be advised to withhold Her assent, there can be no doubt that if the objections stated be well founded, calm reflection will satisfy the good Hi ' 17 sense of the public mind that in maintaining unshaken thosd principles which have been hitherto upheld, Her Majesty will have consulted not only the honour of the Crown, but the permanent welfare of Her loyal people. In conclusion then I would beg Your Graee^s serious consideration of this measure. In case doubts should be entertained of the validity of the objections I have urged, I respectfully pray that Her Majesty may be pleased to order that this Act may be referred to Her Majesty's constitu- tional advisers more especially cognizant of matters affect- ing the judiciary, or to the Law Officers of the Crown, to advise Her Majesty thereupon, and more especially — 1st. Whether any and what right vested in me on my appointment as Master of the Rolls. 8nd. Whether this office can be legally or constitution- ally abolished without securing the continuance of my income for life. 3rd. Whether the exercise of judicial functions as a Judge of the Supreme Court, affecting life, liberty, and property, can be constitutionally imposed on any of Her Majesty's subjects against his will, independent of his own sense of fitness or qualification. 4th. Whether such appointment can be constitutionally made by the Legislature, and not by the Crown, more especially while the Chief Justice and other Judges of the Supreme Court hold under the Royal Commission. For the aforegoing reasons I humbly pray that Her Ma- jesty will be graciously pleased to disallow the Act "relating to the Administration of Justice in Equity." I have the honour to be, With great respect, My Lord Dnke, Your Grace's most ob.'t humble servant, NEVILLE PARKER. Hia Gbaoi The Duke of Nbwoastlb, Secretary of State for the Colonies, &C. &C. &C' ■* r-- ^. i- ,,s'!i ?'-' ■f? i 'P u'v ?;• 'i • 4. '+* ' ^'•' '' '15« \K|t f. - ■flvt ^•f^r'y - -"i^-StiS^;) Schedule of Papers herewith. r.-A. & B. Debate in House of Assembly on Introduction of Law Commis- sioners' Report. 2 B.5 ^«^ate in I'egislative Council. 3.-Letter of Chief Justice, Judges, and Master of the Rolls. ♦.-Petition of Master of the Rolls to Legislative Council. 5.--Repre8entation of Master of the Rolls to the Lieutenant Governor. 6. — Further Representation. T.-Observations on Debate in Legislative Council.