IMAGE EVALUATION TEST TARGET (MT-S) # «/, III 1.0 I.I W|2i |25 |jo "^™ IIBPi "f Ui£ |2.2 IL25 III 1.4 m 1.6 Photographic ^Sciaices L-uiporatiun 43 WCilT MAIN STKIIT WUMTIR NY. MStO (n*) •79-410;* Z ^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Instituta for Historical IMicroraproductions / institut Canadian da microraproductions hiatoriquas Technical and Bibliographic Notsa/Notaa tachniquas at bibliographiquas Tha Instituta haa attamptad to obtain tha baat original copy availabia for filming. Faaturaa of thia copy which may ba bibliographically uniqua, which may altar any of tha imagaa in tha raproduction, or which may significantly changa tha usual mathod of filming, ara chackad balow. Colourad covars/ Couvartura da coulaur r~| Covars damagad/ Couvartura andommagia Covars rastorad and/cr iaminatad/ Couvartura rastvurte at/ou palliculAa Covar titia missing/ La titra da couvartura manqua Colourad mapa/ Cartas giographiquaa en coulaur Colourad ink (i.a. othar than blua or black)/ Encra da coulaur (i.a. autra qua blaua ou noirat Colourad plataa and/or illuatrations/ Planchaa at/ou iiluatrationa en coulaur Bound with othar matarial/ RalM avac d'autraa documanu D D D Tight binding may cauaa shadows or distortion along intarior margin/ La r9 liura sarr*a paut cauaar da I'ombra ou da la diatorsion la long da la marga mtiriaura Blank laaves addad during rastoration may appaar within tha taxt. Whanavar possibia, thasa hava baan omittad from filming/ II sa paut qua eartainaa pagas blanchas aiout«aa lors d'una raatauration apparaisaant dans la taxta, mala, lorsquo oala «tait possibia, caa pagaa n'ont paa 4t« fllm«as. Additional oommants:/ Commantairaa supplAmantairas; L'Institut a microfilm* la maillaur examplaira qu'il lui a iti possibia da sa procurar. Las details da cat axamplaira qui sont paut-4tra uniquas du point da vua bibiiographiqua. qui pauvant modifier una imaga raproduita, ou qui pauvant axiger una modification dans la m^thoda normaia da filmaga sont indiqute ci-dassous. D D □ G n n Coloured pages/ Pagaa da coulaur Pagea damaged/ Pagaa ordommagtes Pagas restored and/or laminated/ Pagas reataurtas at/ou palliculAes Pagaa discoloured, stained or foxed/ Pages dicolor«es, tachetAes ou piquAas Pagea detached/ Pagas ditach*es Showthrough/ Transparence Quality of print varies/ Qualit* incgaia da I'impression Includes supplementary materiel/ Comprenc* du matirial suppi^mentaira Only edition available/ Seule Adition disponibi* Pages woolly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible imege/ Lea pages totalement ou pertiellement obscurcies per un feuillet d'errata, una pelure, etc., ont it* fiimies A nouveau da facon * obtanir la meilleure imaga possible. This item Im filmed st the reduction ratio checked below/ Ce document est film* au taux da r*duction Indiqu* ci-dassous. ^°X 14X 18X 22X 7 12X IfX aox 26X 30X ua ax J 32X Th« copy fiimtd h«ra has bmmn rvproducad thanks to tha ganarosity of: New Brunswick Museum Saint John Tha imagaa appearing hara ara tha baat quality posstbia considaring tha condition and lagibiiity of tha original copy and in kaaping with tha fiiming contract spacificationa. Originai copias in printad papar covars ara filmad baginning with tha front eovar and anding on tha last paga with a printad or illuatratad impraa- sion, or tha back covar whan appropriata. ASH othar original copiaa ara filmad baginning on tha first paga with a printad or illuatratad impraa- sion. and anding on tha laat paga with a printad or illustrated impraaaion. Tha laat racordad frama on aach microflcha shall contain tha symbol —^(maaning "COI^- TINUED"). or tha symbol V (maanfng "END"), whichavar applias. Maps, plataa, charts, ate., may ba filmad at diffarant raduction ratioa. Thoaa too larga to ba antiraiy includad in ona axpoaura ara filmad baginning in the uppar iaft hand eomar. laft to right and top to bottom, aa many framaa aa raquirad. Tha following dingrama illustrata tha mathod: L'axamplaira film* fut raproduit grftca A la giniroait* da. New Brunswick IMtiseum Saint John Laa tmagas suivantaa ont Ati raproduitaa avac la plus grand soin, compta tanu 69 la condition at da la nattati da l'axamplaira film*, at an conformity avac las conditions du contrat da filmaga. Laa axampiairaa oiiginaux dont la couvartura an papiar ast imprimia sont fiimAs mn commandant par la pramiar plat at an tarminant soit par la darnlAra paga qui comporta una ampraintn d'impraasion ou d'illustration. soit par la sacond plat, salon la cas. Tous laa autras axamplairas originaux sont filmte an commandant par la pramlAra paga qui comporta una cmprainta d'impraaaion ou d'illustration at 9n tarminant par la darniAra paga qui comporta una tal>a amprainta. Un daa symbolaa suivants apparaitra sur la darnlAra imaga da chaqua microflcha. salon la caa: la symbols —»> signifia "A SUIVRE", la symbola ▼ signifia "FIN". Laa cartaa. planchas, tablaaux. ate, pauvant 4tra filmAa A daa taux da riduction di/f«rants. Lorsqua la document aat trop grand pour Atra raproduit an un saui clichA, i! ast film* k partir da I'angia sup*riaur gaucha, da gaucha k droita, at da haut an bas, sn pranant la nombra d'Imagas nAcaaaaira. Las diagrammas suivants illustrant la m*thoda. 1 2 3 1 2 3 4 6 e It ,^"'^^, ,W'' 4tr-***' -^" '*%*J)l**^w* ^ ■ I. ^^ i*;fi«J I"*! >■ \i'i ^'-5? t -J '^'). ii^ REMARKS, ETC., L'i' . Hi*-' OF MR. JUSTICE PARKER, i'.^'- ' ■ - ON W Itl'. L. w' THE ACT REUTIVE TO THE ADMINISTRATION OF JUSTICE IN EQUITY, •'■•^'l (IT Vic, c. en.,) POUNDED ON THE SECOND REPORT or THE LAW COMMISSIONERS. ■PKfieniii*' - * J. «c A. MoMlllftii, Prlntorg, Ht. John, N. B. i^BHMi^H^l^lHHnBHMMn^HIIHBaBBI nmtrx f t^aa^ wmmmk ^^^^^^^^^^^^^^^^^^^^l^^^^^v= "" - - 4. *^^^H W^^^^^^^^^^^^^^^^^^^^E^ . 'IHH W^^^K^^^^^^^^^^^^^^^^^^^^^mm^^, -♦, •#IP^ IH^^^^^^H^^l r.l. ,.mmMk -^-^ ■ ■ ^ Sir,— - Youi might w by Her '. Assemb " Equit] Act, anc might b( appointc as much mit, sue per, whi I canr of Justic or Equit ary, are E require j 1 jesty in ( material ties of tl , Judges c S branch c I The i I years of I ed from ^ Colony wealth. the hicrc 1-7 t, iS*/. JbAn, A'; 5., May I5th, 1854. Sir, — J f Your Excellency having desired that any remarks I might wish to make by way of objection to the allowance by Her Majesty in Council of the Act passed by the General Assembly, " Relative to the Administration of Justice in " Equity," should be transmitted at the same time with the Act, and that at an early day, in order that full opportunity might be aflbrded for considering the same before ihe time appointed for the Act to take effect, I have prepared, with as much care as the time and my other duties would per- mit, such observations as appear to me pertinent and pro- per, which I now respectfully submit. I cannot bring myself to think that the due administration of Justice in the Courts of the Province, whether of Law or Equity, and the character and suflicicncy of the Judici- ary, are matters of such merely internal concern as not to require and justify some effectual supervision by Her Ma- jesty in Council over Acts of the Colonial Legislature which materially aftect the constitution of the Courts and the du- ties of the Judges, especially when it is considered that the Judges of the Superior Courts have now no voice in either branch of the Legislature or the Executive Council. The inhabitants of New Brunswick, during the seventy years of its existence as a separate Province, have increas- ed from about twenty to two hundred thousand ; and the Colony is growing rapidly in population, commerce and wealth. Its mercantile marine is extensive, and greatly on the increase. 11 The transactions which come before the local tribunals do not merely concern the people of the country, but credit- ors and contractors, British, foreign and Colonial; ship- owners freighters, insurers, merchants and mechanics, be- yond Its borders, may be directly or indirectly affected by ildictir""''°" ""^ """' ^''"''' """^ '^^ ''''''^'' of their jur- The projected introduction of rail-roads, to be constructed mamly through the advance of British capital, and by Brit- ish contractors, engineers and operators, under arrange- In f''^''''J'''^^ Government, gives additional import- ance to this subject. The British Colonies of North America under the (so termed) system of Responsible Government have lost I ad- init, some ol the ancient character of dependencies, and are n.ore under self-regulation; but, in every popular form of government, the importance of maintaining the independ- ence oi the Judiciary is very generally acknowledged. That this IS an American as well as a British principle, the writ- ings of the late Mr. Justice Story and Mr. Chancellor Kent auest '"''"'''' '^"'^'' '"^ '^' ^""'"'^ ^'^*'' abundantly Constitutional questions of no trifling moment may occa- sionally arise even in Colonies. It is possible that Acts of Assembly may be found to conflict with Acts of Parliament and give rise to questions demanding the consideration of Judges superior to local influence. The jurisdiction of the Exchequer vested in the Supremo Court requires, for its proper and satisfactory exercise, a freedom from unnecessary dependence on the Legislature or the Executive Government. Your Excellency has now been six years in the Province and you have visited almost every section of it. You have' duct of the Judges, and of learning whether they have dis- lU local tribunals try, but credit- colonial; ship- mechanics, be- tly affected by se of their jur- bc constructed I, and by Brit- uder arrange- ent connected tional import- under the (so ive lost, I ad- ncies, and are pular form of he independ- ledged. That pie, the writ- incelior Kent, s abundantly nt may occa- ! that Acts of f Parliament, isidoration of the Supremo Y exercise, a Legislature lie Province, You have 1 of the con- oy have dis- charged their duties faithfully or not, and how far they enjoy the confidence of the public. Your Excellency must judge also whether they have done right or wrong in resist- ing the attempts made year after year in the Assembly to reduce their judicial incomes. I need not particularize them. They have caused Your Excellency some trouble. I advert to them merely for the purpose of showing that, while the Judges must not expect exemption from them, they cannot rely for protection on the support or influence of the Provincial Government as exerted in the Assembly. It is made an open question, and so probably will continue. This circumstance, I humbly urge, forms the strongest pos- sible reason for the exercise of the authority of the Queen in Council, as the only power which the Colonial system provides against the evils which would otherwise arise from arbitrary and inconsiderate local legislation ; and which I believe the good sense of the people recognizes as a whole- some and necessary check. It supplies, to some extent at least, what is an essential element in the Institutions of the United States, a written Constitution which is recognized as the paramount Law, not only in the Federal Govern- ment, but in that of each separate State of the Union. This Constitution is no dead letter. It is often called into exercise to annul, when it cannot altogether prevent, un- constitutional legislation. Of the effect of this safeguard in one instance of legislation not very dissimilar from that I am considering, a case which occurred in Virginia in 1794 may be cited as a proof. By the Constitution of that State the two Houses of Legislature were to appoint, by joint ballot. Judges of tho Supreme Court of Appeals, and General Court, Judges in Chancery, &c., who were to bo commissioned by tho Governor, to hold their offices during good behaviour. A law was passed in 1794 enacting that tho Judges of the District Court, who were also Judges of the General Court, should so far exercise Chancery jurisdiction as to IV grant injunctions to their own ,-.,^ ' » case, of an EquiLb nlmt: Xr '"'' ""'" ^--^an » Act to one of .he District Courts for .1 '""'^. """J" 'hi3«preh< referred to the General Courrind " T, '""""'""'' " ''^ It w «na„i„,ously rejected on the princip htt"^" ^n^Memtion^.nre , constitutional. One of the jX ' ? ^" ''"' """••he C of .ho Constitution and Je ^reltV 'V "" ''ords^tenur independence of the Judiciary sa!.-"'' "^ '"="""8 Colonis "which is a right every dizen.n '""°' conferred, dearly "a right too sacred toL lide?7' '" '"""^ ""'" '^^^ *" ««> "but were I willing to do soTs ret. ! ^ "Z" "" """- ■• •»<) Poi "I ought not, because it would ft" f " 'u' ' '' ^ •'"''«^ *»»»°' " cct before mentioned irondedbv?!" '^' ""P""^" »'>■ l"-c F ; kept sacred for the wis"s. a ' besfo'fo '""""'"" '" "' "^S"' "hat justice and the law be do,>e ,T» P"P°^es, to wit, ,i„ce, « "Without fear or reward For h '?"'""'' of person. Tour E " dividuals stand wherbrouX """"'* '"^ "S'" of in- ;:or even an influenl'cht .'e? if^^n^;'!; '"^ "■""'o- "remoyed from office by .he ^1'! {"''«''' ""y ^ "them, ,0 wit, by a Sto.,1 ?'"'" ^^'ch appointed "and by a Sta'tu.I disap p t.Znr"'"""' " " ""' -«• " Court of Appeals f E " t d ""'t "' ""^^ '" ">« "from this source when futurl u^" ^ apprehended "Let me now complre ,L fl ?'' . ""^ """" ~""P» "another point, tha t,e wamof "' ^"-"'"'-n i„ "good behayiour, and t le VI °'""'"''''"° during "apply. When I receive he .7"' *'" '"""^ "»* ^""bly "on which I stand se ha. ^"''°" ' ^" '^» 8™'>»d "ground, and no opinior but s.^i: "'™ ""»8"'y '» 'h«t "base motives can b ulien or! "' "" ^'"'"^ ''«"» --«easo.whe„sor:':;;:n:rar.:ri:; Ih HiB EZCE Sir I n mn^ 7 ^^yf *^^ powers will enable me to discover it, without any ap- n^made under this|prehension of an unjust attack." ^nctior^ It was I It was observed by another Judge that "if the Legisla- t the f"^^ ^^^^*°"^t"^e might at any time discontinue or annihilate either of rin^ t^Z7^^ "n.%the Courts provided for by the Constitution, it is plain the e 8. ^° tf^e words ^tenure of office might be changed, since a Judge without trarvTl^h'"^ theitany breach of good behaviour might in effect be removed t .7 ,*?^"®*^^^-**from office by annihilating or discontinuing the office h implication, or f itself." I^e the appoint. | Your Excellency, to whom the defects of the present office^^^"V "* ^<*^°">^1 system, as exemplified in New Brunswick, are vrerv .?" "®*^' *^^'"'j' apparent, his very fully taken up the two import- sow ^^'^^' *"* subjects of "Exceptional legislation" and "Finance," ^^^ er on earth ; |nd pointed out most forcibly the necessity of reforms which ^^ _^ , as a Judge |annot be secured without some modification of our Legis- mportant ob- fative procedure. May I be permitted most respectfully to urn *° ^^ Suggest that the future administration of Justice in the Pro- poses, to Wit, fince, and position of the Judiciary, are not less worthy of nner ot persons Your Excellency's special notice, the right of in- _. ^ ^ i have the honor to be, with great respect, Your Excellency's faithful and ob.'t servant, R. PARKER. ith the public, fudges may be fiich appointed as in this case, he case in the apprehended more corrupt ? 'Onsdtution in lission during and forcibly 36 the ground egi ity is that derived from > from office j ^de to me by i n» EZCBLLBNCT I Sir EDMUND WALKER HEAD, Bart., LiBCMNANT GOVBRNOB, dcc. &C. &C. St G( M Sir,— Mr. i m^me ri ^e abo fls juris Tour I thing c( As w Ui trans of State Ikis exj iDntaini m I 9lS EXOEI Sir I K. 'i ! wmmtt [iBtter of the Chief Justice and Mr. Justice Street, to His Excellency the Lieutenant Governor. Frederieton, N. B., May 18ih, 1854. ^ Mr. Justice Parker having laid before Your Excellency ■|rae remarks on the Act of Assembly recently passed for te abolition of the Court of Chancery, and the transfer of I jurisdiction to the Supreme Court, we beg to express to Ifour Excellency our full and entire concurrence in every IIKng contained in his communication. f As we presume Your Excellency will deem it expedient If transmit that communication to Her Majesty's Secretary '0 State, we have to request that it may be accompanied by His expression of our concurrence in all which is therein |t>ntained. We have the honor to be Your Excellency's ob.'t servants, J. CARTER. G. F. STREET. tlB EXOELIBNCT Sir EDMUND HEAD, Bart., &,c. &c. &c> ' '< V ^' v,- mwn^wnKm m Bfemarks of Mr. Justice Parker on the Act of the last Session, (17 Vic. c. 67,) intituled "An Act relating to the Administration of Justice in Equity," founded on the second Report of the Law Commissioners of New Brunswick. IThe Act of Assembly 15 Vic. c. 42 racites the benefits to I expected, if the Acts of Assembly are revised and pro- ptrly arranged, and the proceedings in Suits at Law and la Equity abridged and simplified; and empowers the lieutenant Governor in Council to appoint Commissioners to cairy out these objects, as well [1st] "to consolidate, "iimplify in their language, revise, and arrange in one "uniform code, the Acts of Assembly, incorporating such *« alterations and amendments as the Commissioners might "deem necessary:" As, [2ndly] « to report upon the prac- **tico and proceedings in the Courfs of Law and Equity, "and to suggest such altorations therein as might ai)pcar <*!* Ihe said Comnussioneis, c>r a majority of them, best ^adapted to lossen expense and advance justice, and uspo- "cially 10 take into consideration the Law of Evidence, and "the propriety of altering the same; and to report to tho "Lieutenant (tovernor, in sepur: to reports, embracing in **one report, the revision and codification of the Acts of "Assor:>bly, a!>d in the o/hvr, tho practice and proceedings "in t'-; Courts of Law .-uid Equity, an I the other matters "directed to be reported upon; to be laid before the Legis- "lalure for thoiv considorativ;n and action." B I 2 form one branch of ,i, J r • ">^'<^<'<>tion shojgcecl i having especial r Xence "o h! , "^i "f " "'"' Eq.«3^-on So that the Lcsislamrr„^ «>; Law of Evidence, the othW«l elo general view Cl/if • '/J' ''''"'' """" "■"■- "'»* »' p««e.„..,;,:~'V^r.t "'■ ""'" ''"'"""' '-'^^"^ At the Session of th/'f 1 , . **»"''' ° Koport on Codifica. on was p: L™ ed '""' '," "'"' "1""" Commissioners' firs, RenorfT ? ■ """'"""'^y "aH^d ,t#ethe conclnded, three s pararinorK '" '""!■'" '«^''. J"W*^'»- Legislature. '^ •""" '""''^ '"'erote li impose, Tlie 2nd Koporl relates in il.» i i • • •*■ ^° in Equity; th/gj (o h!. j , ^"'"""^"■a'i"" of J«s.i,«»mmi, to the 1st. ^""i "'" ■«'' i^ S'lpplomenf; »sed t. commenrdt/the" ^f '""■" "^ S-« Ganges rlira" purview of .heif ComrrTe"''"""''^ "■''"" '" *^"^ would show that thev ^ V ' , , ''^""""^ "^"^^ ''Y 'he' "^"'"'S -cm to have rco e'o, en,°,!t d\ "/ "" " """'•' ""'" '*'='' ' arrangement of Co. r"s a ^ ^ ? """' """ "■« "- I' ''""= were to be embrac i :' ^j' ^^'I'"'^ P-eodu,, f gis'a taken up pieee-meal and l!^f ''°'''"' ■'" "^ "> I" • -ed, the ither sZm,l '!^" °"° "»" -» »' "11 consi. I cred, the other sliould be om.ri ■'"'■''•'''''" """ "' ■■>" ""^''1 ta.™ eflect in „ f„wl';:,,r!:.?,',l.''L"". ^« "PP-'-'-'a .' |; cnll to Takil tike eflect in a tow momhrr?,"" '" "" "^^ °PP"i»lod I f"=° •» confirmation of nlrTi'™' '""'''''"« "'° «P'^^ ^'^ «' I-asbcen the cou ise of nro ^ '," """"• 1''"'. ''owivc, *», w laborious we..ksr.i:f :r: o,!-„ri:" r^°""^ '"-" "^ "^^ t.on, adopting the revision o h Co ,„ •' •'°"' ™''"'"" '• ^' alterations, the L,..-isl.„„' '-""'"""^loners will, son,, „ , patch for so grav^^d 'll!:;"'; ""'"""^ ^'"' «-"' -li^ "• " lixle or no di,cussi"„orr" "'""'''■ "'"' with vcrj . HI. ( measure. pas,ed r Act fon , T"?'" "' "•""''" "^ "" ^"' ""' P"" of .„'„ Coinn.i: o r ' 'k/:; ',■"' '"" ''"'"'' "» ' '^^ ' Soptcubcr nc..,, while 1 e lil , ™' "" "" '" '""V "' , the 11,11 eiubracng the other part oi <'•) lued ill these terniil^ second branch of their inquiry has been merely intro- codification shoi|||ced into the House of Assembly, and after two readings, rs labours; and {^ forma, the further consideration postponed to the next )f Law and Equitil^sion of the Legislature, when, in consequence of a gen- Evidence, the othilil election taking place, it will come under the considera- >re them under oill|ti of a new House, and may or may not be adopted, under another, 1/ ;|^he result has been, that the Legislature abolish tho Q|hirt of Chancery, and A'est the Equity Jurisdiction in the ;mbly in 1853, tlfilprenie Court, before even entering on the consideration >mmonIy called t[||pether the additional legal — and certainly more appro- that of 1854 julpate — duties proposed by the Commissioners, shall be e laid beiore tliplposed upon the Court. A very cursory examination of the third Report of tho stration of Jmstidlj^nimissioners will show that the new duties thereby pro- tb is supplement; Jf*sed to bo transferred to the Supreme Court are neither tw nor inconsiderable, and some are rather of a novel laracter. exactly within tli l> Why, without any pressing emergency, this new Act, 3S issued by thei <^aling so great a change in the administration of justice, It it would hardi llhich is but a part of the projected improvement, should ^ct, that the ne\ IP forced into operation before the next Session of tho Equity procedure jpsgislature, when the whole might be considered, it is dif- orts; so as to h iciilt to conceive. vas at all consid 1 Taking up the Act, however, by itself, without any refer- Act appointed t' 'i^*^^ ^^ future legislation, there appear to me many and ^Jng the oxprcs ^'^'T gf^vo objections to its receiving Her Majesty's allow- This, liowevcr ^^'^f "whicli I shall endeavour to point out under tho foUow- devoting mnii} *•» ''^"^^^^ • 'I't'Joct, codifica mnm witli sohk ' with groat dis , and with ver\ ■ details of tin L Violation of Constitutional principle'?. H. Inoxpedieucy of the proposed amalgamation. HL Objection to tho details of tho Act, as tho new duties Ivill allect all the Judges. tlio second Ho tlie 1st day oi JO other part 01 IV. Its unjust operation in my own particular case. (1.) Violati' ,i nf Constitutional ^irinciplcs. cellor, and a CourtTf rh ' ™"" ^PPoin'^d Chan- opera ion and h ',"'''*''' tamodia.ely called ■„«, of .he Sup el Co,m™'" "" " "''•»"»■ '"» •"■"8- occasion rl^ZenZZ ,1°""° ".' ""=■"• ""^'"^ '". - •he absence of ,he Ohl , ^'"'"'=^""' ^n^ at others, in of a Co.n,is:forunder "t g' "l^rr"'™"^' "^ -"'"' -r the duties ..ere d ^ a gad 'n, U 1 T,'" ""' """■ present Majesty's reisn wh^n.^ », " >"" "f Her appointed and'provTd for : I^ttt"?:"""' ^'' Vic. c. 8. "^ *"® ^<^* of Assembly i 25th, 1784, having 2 Isl!,^ "^ r '"'^''' ^""^ November Common Pleas, ',dSZ;Tw'''° '^"■«'» Bench, Court has ai.ays consisTed T "' clijTT'"''- '""'' Pmsne Judges, „„d no more IVn ^I- "°° '""^ """o made by the Crown and^.l; ''""'" ''"^ »"" b^n of Assembly, and !";» "l n It T'="''"''°" "^ ">" House '0 reduce I nuXr Tc T:; "/' " ^^''""'™ Council, Judges, did no, receive Ho" Mats,v"r"' "'" '"" P"™" , Th« tenure of ,„„ Master o,rRoT"°"- olared by the to,MS of the Act of ^ " '"''""'''' ''°- missionundertheGren Seattlh J"""'"''' """^ his Com- 'ha. of the Judges ot^S^ 'I'"'' *'"•''**'''''' i'A^Wonr, " -^-i..^ .he piluro o ,X:r:ig"„"" Vr''^' " "• words of Earl Orcy in hi, nl? ?,* , '"" ""' •>'» The difference of tenure is most distinctly recognized in law. In the case of Har.ourt vs. Fox^ reported at great length in I Shower's Reports, 426, 506, 516 and 556, and more briefly by other contemporary Reporters, the question arose as to the power of the Gustos to remove a Clerk of the Peace, appointed pursuant to Statute by his predecessor, quamdiu bene se gesserint. The Judges of the Court of King and Queen's Bench, though concurring, delivered their opinions seriatim. Lord C. J. Holt using the following em- phatic words : « The words themselves, in their natural and " proper extent, do signify an estate for life, the Clerk be- « having himself well." * * * "It seems to me that, "upon the whole frame of the Act, to be the intent of " Parliament to make such provision that the Sessions and " Justices should always be furnished with an able Clerk « of the Peace ; and to encourage him in the faithful execu- « tion of his office, they settle the estate so as to put him " out of fear of losing it for anything but his own misbeha- " viour." * « ♦ « The design was that men should have " places, not to hold precariously or determinable upon will « and pleasure, but to have a certain durable estate, that "they might act in them without fear of losing them." This judgment was affiimed on appeal, by the House of Lords, (See Shower's P. C. 158,) and the correctness of it has never, I believe, been questioned. But it may be said, perhaps, that the power of the Legis- lature to repeal all Statutes creates an implied exception or qualification of the tenure, and that the meaning was that he should hold during his good behaviour and the pleasure of the Assembly. The answer is, that it is not the power, but the constitutional exercise of the power, wo have to consider. What, upon the principles of the Constitution, and the practice in analogous cases, had the Ma t r of the Rolls a right to expect, when he accepted the office , giving up therefor a large and increasing practice at the Bar, and changing his place of residence from St. John to Fredericton? 6 The abolition of Courts and Judges is „nf v • 14th secon provides for the transfer of th„T '■' ^^^ respective Courts of Westminster "'"' '" "»« -d oaer person, tJ:;l";:ir"T °' ": '"''•''' county of Chester and pfincnal t ^f w ,'"■ "'"'' '» ">« annuities to s„eh of the jZZ'Vi ^'''' ""<• Srants under a qualification tat thi'r "'" »=<=epted office 'he future provtsiou oCpJuZoT>TT' "^^ "'"J^-^' '» some time before eontcnnS ' ' """^^ '"^^"'S been made subject thereto) "'" "PP'-'-'monts "-:.;r;t:L^;:r:^^^^^^^^^^ *<= "- -^'^e par. respectively appoint;d by h1 mI ": " '""^ ""^ "» or office, the salary or Lo L ^ ^ ""'' """"■ P'aeo e^nal or greater JoZ T^TZ !"'"" """ '^" "' jec. to a proportionable a'batol , ^ ^ """"""^ -■<= -"- i-ins clause left if in «i,« ^" consideration ofal't V reCsr"' "" *'"J"'^' » <"-« annuity of any Jndje Z ""' '" ''"'^"""o ''or « ?'««« where "If "" 'Mure of his office m ™'"""*' «ason for consid More, I ,h,„k^ „^ „„rbl? .°"''^^'^« "ffected ir:;:f"^''^p-Ctt t'"*'''""-''''- ■"ieqSe a ' '; '" ""« P^vided for ir "' ">» Welsh B:-heref """ """»«-" "^'-e sX^r »"ch Judee ir M r^'"'8 "lo Queen to m ? Supreme n.e„t. ''''^"""^''J-y.ho«lh,''fiVt:ra';er'*^'°"^'" " '■' ""necessary to • "'''""■"'■ ™»>-ave:e;r-« ^- aone i/.L:XS,,L~ >%*v.H^*«i^#^^#;t5|.#i#si^ despatch, the ne condition 'f residence )Iace where of this pro- ^e made to ^or consid- cted. prove that '^s by Act > and that obtained, Majesty's tit. 3 to have e Welsh 't of an in that She so 'Stances ^ye ap- ipreme fercise 'tualJy ^renie 511 for Joint- pre- mos, •vn's urts not hit 9 A parliamentary recognition of the prerogative may be found in the Statute I have ah-eady referred to (11 Geo. IV. and 1 Wm. IV. c. 70), but what is the course there taken ? The preamble recites the expediency of appointing an ad- ditional Judge to each of the Superior Courts of Common Law, and abolishing the Welsh Judicatures ; and it is then enacted, that " Whenever Ilis Majesty shall be pleased to " appoint an additional puisne Judge in either of the Courts " of King's Bench, Common Pleas, or Exchequer," such and such shall be the mode of sitting and transacting busi- ness ; and salaries and retiring allowances are provided for the new Judges and their successors. If it were intended that the Supreme Court should con- sist hereafter of five Judges, so constituted, not by Her Majesty, but by authority of a Legislative enactment, why, I may ask, is not that clearly expressed, instead of being left to a doubtful inference? The Act leaves no option to Her Majesty, either as to the nomination of the new Judge, or increasing the number of the Judges, but enacts "that "the Master of the Rolls shall be one of the^i-c Judges of "the Supreme Court, both at Law and in Equity, but his "salary, as such Judge, shall, during his incumbency, be "paid in the same manner, and to the same extent, as when "Master of the Rolls, without foes or allowances, other "than for travelling charges on circuit, and the present of- « fice of the Master of the Rolls is herc^by abolished." No- thing is said of any successor. He is made a fifth Judge of the Supreme Court, and though Her Majesty might on his death or resignation, appoint a fifth Judge (by virtue of Her prerogative) what is to bo his remuneration or how to be paid? The Master of the Rolls is now paid from the Province Treasury, not out of the Civil List; as Judge, he is to be paid in the same manner, unless some other regu- lation may be made for adding it to the Civil List. The Act does not even provide for the continuance of his present tenure of office, nor recognize the necessity of his c 1 I '!*. t 10 "ceiving a Commission from ■n as Judge of ,he SnproZlZ Uu'^' ""''"^ '^"^ Jndge ofthe Supreme Court iMl' k^ ''* ""nslimted . me i,od^.n Ac. of ,he Col^i , L/ ,"" ""P^^dented •he Act had appoi„,ed him b' ^T "''^^ "»>oh aa 'ece.ve a commission or nTif'he T' ^"^ whether he :i--^o»..offsci^t^--.en£: -.^""yttf iTifC^r/nrfh" f' "" ^'■^" --'- no fees. J" ge is e„,i,led ,o cer ." /.her J^" '"^ '''"'^'^ -oh Chambers. Tliese fees, when r. "' °" Ci'^uit and a. "'» he Treasury, b„, are noZV '""'""^ "nd Paid Will therefore be hi, ,„ , ° '"' ^^'ved ai all ThZ ^h- executed by „7„t'' ""f '"' ""= -™ ' --t =»'.or; when oxeemed by ^'^ 1" " l' '" "-^ P-d "yX' On the subject of the suXt '."° u" "'^ '° "'= P"'" Supreme Court, and the J dges'IeM'" ■''l"' •""'?« »' 'he »'>Pertiuoas to animadvert n!., , '" ""«'"'"' considered ""egards Ihequestionof „c. ■ " """ ''' ^orne in mi^d of Assembly have recordedTh2'°"' "'" "'"^-^^ ""» Hole' 'o be but four Juj ,„ 'f jh '",""'"' ">=" 'here ought «nd .n Equity; He' mJl^'iy "'« <"«'es both a, Law el '0 sanction this reductio, ''T^^'has not been pleasT Assembly have renea e I i "' '■''^'"■d' fees, ,hrth» •'"dses of them wTot'''' '""'^^^"'ed to depr ve u! -;-deratecomi:i;rbrr'r''^^"^'"«'"-" of 'he surph,s of the Civil u". . °' '" """ 'he«of, out Recommended by Her wljes y' s G ' " ""^ "'"'" »'- 8>y gest.on of the Lieutenant c7 '""'efnmenl on the su/ ha. ,„ the now table o fee, nr™"". ^•"' " <-■» be Z«„ ers at the clncn r , ' P'oposed bv tF ;> p close of the third nLnrt 1 V ^^"^'"'ssion- ««Port, the Judges' fees are >«ing sworn onstituted a precedented as much as whether he udge when •"Id he be his tenure the same 6 no fees ; "es at the ges, each Jit and at rmed by and paid There service, by the aid. 3 of the isidered ^ mind, ■ House ought It Law pleas- »at the e the assent »f, out ongly I sug- seen sion- s ace 11 entirely omitted ; two of the Commissioners only signing this part of the Report, and leaving it to be inferred, I pre- sume, that the Judges will still receive their fees under the old ordinance of the Governor and Council, while the third Commissioner refuses to sign it, because he is of opinion the Judges are not entitled to fees, and he cannot unite in a statement which leaves that question in doubt. Should this new Table of Fees be adopted by the Legis- lature at the next Session, as may probably be the case, the Judges fees will be alone left dependent on the author- ity of the Ordinance, under which at present the fees of the Attorneys and Officers of the Court are paid. There is one other point to be noted under this head. The new Act provides that the Supreme Court shall hear and determine in Equity, all causes heretofore cognizable by the Court of Chancery ; and that the said Court of Chan- cery i? hereby abolished, except where it may be necessary for the transaction of business in cases of Lunacy, — Idiotcy has, probably through inadvertence, been omitted. The exception, however, which is introduced, renders any doubt as to the intention of the Legislature not merely to deprive the Court of Chancery of its Equity Jurisdiction and trans- fer it to the Supreme Court, but to abolish the Court alto- gether, reserving only to the Chancellor the specially dele- gated Jurisdiction over Lunatics. What becomes then of the Common Law Jurisdiction, which has been exercised here, as well as in England ? It is only the Equity Jurisdiction that would seem to be trans- ferred to the Supreme Court ; but the Common Law and Equity Jurisdiction of the Chancellor are made to cease by the abolition of the Court of Chancery. Admitting that the Master of the Rolls has no original jurisdiction respecting matters arising in the Common Law side of the Court ; the abolition is not, as it might have been, confined to the jurisdiction which he exercised ; but 13 inchides that of the Court of the Chancellor. What become, .hen of t e office of ,he Clerk of the Cro.n in ChleeTyT Have these by no means unimportant questions been at an d scussed, or the possible consequences of this sweep ng aboh, on been u, any way considered ? There is no indica tion that they have been. (2.) T'><'' inexpediency of the proposed amalsamallon. It is not proposed that there shall be a fusion or mixture of .he equttable with the legal jurisdiction. The .wo pa s are to he dtst.nct. An equitable defence is not to be ad mmed to an action a. Law; nor will the Judges whet s....ng on the l^^ side of the Court be ..mpowered to aC t on of Jnst.ee seems to have been considered the great d^eratnm oil.... Reformers in England ; but the clt n ss,oners hero (on due consideration,) have rejected T. Lut the p an they have adopted again introduces the objec ..on so strong y pointed out by Sir John Harvey in h s Message of isth January, 1S:,8, and which the appL.me. t^ "' "■" '""' -- '"•™^^<'' »^ -ii^aicrtrd! These are the words of His E.xcollency: "The Lieuten- ant Governor is under the necessity of delegaHr he ;exerc,se o his judicial functions as Chancelfor "f the Judges of the Supreme Conrt. This arrangement prlml ho utcongruuy of the Con™„n Law and Equity j^trisdt systems of jnrisprudence depend upon principles and •,,<. admrntstered in modes widely di/ring'fr Jea^ otT rhts tncongru.ty ,s strikingly exe.nplified in the case hv omeansuncommon, of the Court ofChancery beingcalled 'upon to restratn proceedings in the Supreme Court " in. and devolving th^uo,, „ M^ o^t R^.tTrt 13 ,„onsible Judge in Chancery, was fully concurred in by Ih. AsTrnWy wh!n they adopted and acted o„ the Report of fhe "d et Committee, to whom the message was referred by palsing the Act 1 Vic. c. 8. and the subsequent Act 2 "" Tht Judges are, on the Equity side, liable to be called on ,„I™t Inlu .cions to restrain the Judgments pronounced r„rLaw :^e. But they are not at liberty to tmport tnto nrprcer?^ t^'^UuIurra the e^dence '^^Z Sr«C"^.^oZt of the Kolls, there J:Zl two extensive ^-T:^^'^^:^^ .irely confided to h.m,-that f"'^ 'h' r^ ^ °' ^^^^^ ,„„ and insolvent debtors, and that "^^''''^''TZvs have now, .ystems, ^^^'^'^;^:^:i^:Z rX^nh^m ma; it is true, ceased to «'^t ' •> " ° ^^ uiature, or some substi- at any time be revtv d by .he ^^a ....U^gXy inconvo- tute provided ; and u w, I ^^^ ^^ j,^„^,_ .„ this, the Courtof Chancery hasben made UieApp^^ ,^ court for all •"; S»"°ga Courts^^f .^^^ ^^^ each county of *« I''^"""^^^ ^^„ t^en prepared by the ,,e S-ernment^o .he^e Co u have^^^ _^^P ^P^^^^^ .^^ ^^ rrr:fdtthetuprl ^ourt, which will therefore have another system of Laws to adm.mster _ ^^ H is not contended m the mam that e the th 14 already adjudica.ed ..po bTh „ i ^^tZ' 'Z' "Court." ' " "'° ^'« •f"''S'=» i" the Supreme E';4.a„d, .hrc^r ir.rr 4rd„'„r '^"""^" '- "asthebcst arran0<.m„„. j "^"""o "»' P'opose this "•he best whihTee ",:"''" ""^ ^i'^-n-^'a-ces, but a, " wheii five Judre. of .h„ r. , "'° "«'""«>" that "...eir a..entio,?rr:t ,;r„:;:o':;;Lr "": '^ "- " »ot be expected to reach il,.T„!^ "'' '^'^^ '='"'■ "sole time and attent 0^0/ '»"!«. """"^-e-- as sH.e.i the "O'l on a par. J.rrpr.'nr.'.r"'"'"'" ""' "-> "— of'': zi, :; ::;:;:r ;: -'"■ •» .p--rve .ho appcranc, "-ess,rK„ot n.e / ^ ^u ,7„'7'°;"' h"- <•<""><■ i. Court to exercise tiL „.!"";" ^"r'" "^ ""> S"l'™»>e J">l«e« in the Court rf E nTv I' "r""""' "^ ""•" '" - 'l'" Equity side oChJ s, i '^' ? "''■ "•"°°'' »f Chancery. J»J«es is real y „ ad„ .! '^"' """■ """ "'"='' "^ ">« Ave -'. own per J."teX""cr„r: '."r '"""^"'^ '" 1 '^y v.ouri, so lar as represented by the Supreme Court in banc, cannot, it .s ^«»> "^^^V^ oJen,b«. can only at stated times l'^''««^ '"1;^^"^'^,*! five Courts,-if I may use the express,on,-the five Chan try courts, of original and co-ordinate jnnsd.ct.on are to b. always open before the Jndges ''"?'='=':''«'>'• *'/"^f; to be seicctoi, very generally, at the discretton o the p«,y, for his ability or inabilily (as may hest suit the occasion) The duty required of the Judge is not co„nned to any s.a ed Court or place; it is to be always open; whether he nde fhe Circuit, or a journey of business, health, or pleasure, he cannot throw off this burthen. '■ PoBt cquitom acilet atra eura, curia would bo as literally true. True, there might be no great diffteultym ^ f^^;^^' versant with Equity practice and P"°='P''=' "'l,,''7al. himself to that department, and a.ded by a good Clerk, dis cCg these dulies; but it is a very different "-mg when undeCkenbyaCcmmon Law Judge "' chambers^^w.thou for some Le, very little uniformUy n> the dec.s onj The Equity, IS to be set to iry ^^^^ ^^^^ oyer and Termmor -^^[^"ZL. Ave men to a stranger. Surely when joi .^^ form Judges for all V^'^^^i^^^^^ ^'^ ^ •»-' ,h„ -<1"'7^^7^S r/jt:,. 'IVd for; especially when u";:Zd'h ';' re»co.hat\his „rrangen,ent is still not r„:om;:!hu'wi,h .1,0 other rccp.isi.e-au appcal-wh.ch .. -'ZrrSs aright the weight orjuaicla, resnon^ bility can content himself with saymg, ^ou have miposeu 16 on me a duty which I am confessedly inadequate to perform, therefore I may be indifferent to the consequences of my decisions. But yet, how is it to be expected that the Judges of the Supreme Court are, with all their Common Law duties undiminished, to sit down to the study of Equity practice and procedure, whh any hope of ever attaining to the most ordinary proficiency? I think it will be found that, so far from the revision of the Laws affording relief to the Judges in their labours, euher at Law or in Equity, as the Commissioners seem to anticipate, it will be found, for a time at least, materially to mcrease them. However carefully Laws may be revised and condensed, experience shows that changes in expres- sion, omission of some words, addition of others, and substi- tution of one term or phrase for another, and even an altera-^ tion in the arrangement of the different clauses in a law, give rise to new questions, and tend to unsettle what had before been settled. This is one of the penalties paid for improved legislation. I will not say that it is not amply com- pensated by the brevity and condensation of the code : this is yet to be tested. Ingenuity will raise objections, and these objections must be heard and decided on. That the sittings at Term, under the combined jurisdic- tion, will necessarily be lengthened, can hardly admit of a doubt ; but the difliculty wc shall have most to contend with IS the increase of duty at chambers, where our primary Courts of Equity must in general be held. These, how- ever, will be more properly noticed under my third pro- posed head. (3.) Objections to the dctaih of the new ^ct. Let me first remark, that, contrary to the recommenda- lion of the Commissioners, and without any adequate sub- stitute, the Legislature have abolished the Master's othco and thereby removed from the Equity Court every officer but the Kogisirar, who is to be transferred to the Supremo 17 C,„r.. under the „cw Ut.e of ClerU on .he Equity side of the ^°T . now fifteen Masters, residing in eight different There are now fifteen m , ^^^ ^^ ^j^^,^ ^,, parts of the Provnco ^J^^'^J^ dispensed with, if the necessary, or that all might not r .^ present Engiish practice had t^^" ^^"P^^^^ Tlierersno I be allowed no Clerk, either sen^ J»» ° mnce or infor- officer to whom he can readay «'" [""J ^ ,pp„i„t ^Uon. It is P'-^^;::t*.^nt cannot peLrm the .nyBarrrsterasanExam^- , ^^^ have expressed an ex- duty himself. The t^"™™'; .,„„.. ^iU, by the now peetation "that much of "-e ^^^'J ,,i " P'».]- 'f ^» 'ftdec* on on what he himself hears and '- "^ 'J; ^'..^..ew duties which „.e familiar with the P--'' .^ ^'^^'.^ ,„r.,rm by the Act „ Judge it. K.iu,ty - ° ; ^;^;''^ „,y ,^„,„, any that as an 20 sionally devolved on me, that I should feel very reluctant to undertake them. For nearly fifty years past a Judge of the Supreme Court has resided at St. John, which is by far the largest place, and is always likely to be the Commercial Capital of the Province. Within its immediate vicinity is the Provincial Penitentiary, the place of imprisonment for almost all con- victs at the Courts of Oyer and Terminer and Sessions, and whereto prisoners may in some cases be sent by the Police Magistrates, and soldiers under sentence of Courts Martial. All applications therefore for writs of Habeas Corpus by prisoners in the Provincial Penitentiary are made to a Judge at St. John. Many British and Colonial Ships resort to its harbour ; and there are different legislative enactments affecting the Ships of the Colony and other Ships, on which questions arise, and are brought before a Judge on application for writs of certiorari or habeas corpus. There are two separate Police establishments; one for the City of St. John, and the other for the Parish of Port- land, immediately adjoining it ; the Magistrates of which exercise extent.ivo summary authority, but with an appeal in many cases to a Judge of the Supreme Court, which will generally be brought before the resident Judge. There are about forty Attorneys residing and practising in St. John, more than double the number of those practis- ing in any one other place in the Province. The applications from several other counties are more conveniently made to a Judge resident at St. John, than to one at Fredericton. All these di'^erent circumstances occasion a good deal of business before me at chambers. Rarely a day passes with- out some application or attendance; and often there are several on the same day. There is no law or rule requiring the residence of a Judgt at St. John ; but I am sensible it would be very inconve- nient to serious ir With i the Terr Courts V so unabi of an I Act taV (thougli retire a here, a in Eng fifteen It is reside indisi[ reside tenda Judg M conv affoi the I pro pre la is' o\( an J« la P t 21 h use of nient to *« P«tession, '-^;„TSnUudget«. Sus injustice, it *"« -" "°\„\ fo„ and a«enda«« a With this "•»'"*;'• '^'t'^^/edericton, and on tV>e Ctrcmt the Terms o( the Court at t ^ occupation. A"* Courts which fall to me, 1 find fu ^^^^^^ ^^^^ d„„es TunaWe and unwiHmg J° Jf ^;;„i„ „„ me it this »»* :ran Equity court, v,h.*w>Ude^^ ^^^^^^^ '"^^17" . . .,kps effect, that 1 snouiu present office,) to ^hou^hl am not anxious to res>gn»yP „,g,, St ouce, it the same P"'' f ^^Jr, secured to Judges "-■ '''". '" dTheCe r r„ Scotlandand Ireiand, atter iu England, and Ibeivev 22 January last. I never saw them until the end of the month I had no expectation they would have been passed by the Legislature without full discussion, for which I knew there was not sufficient time at the last Session. I was fully oc cupied from the time I received the Reports until the Act was passed with my judicial duties, and could pay little attention to them. The public has scarcely had the matter at all before it. I cannot but entertain a strong hope that, on review of all these circumstances, there will appear abundant reason U^iat this Act should not be left to its operation, but that Her Majesty may be graciously pleased to disallow the ITh V^^ Tf ^'''^°" '^ '^' Assembly, when lime may be afforded for consideration and discussion, as well of the matters contained in the Commissioners third, as in their second Report, the whole subject of the Administra- tion of Law and Equity in the Province may receive at the hands of the Legislature that treatment which its import- ance, as affects the public and the judiciary, would seem to demand, and some at least of the material objections I have pointed out may be removed or obviated. All which is most respectfully submitted. R. PARKER. St. John, New Brunswick, May, 1854. 3nth. T the here T oc- Act little itter V of ison that the ime veil s in tra- the )rt- i to ive