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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/
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r~n Covara damagad/

Couvartura andommagAa

Covara raatorad and/or laminatad/
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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/
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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.

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Pagaa

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Pagaa diacolourad, atained c^ foxad/
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Qualiti inAgaia da I'impraaaion

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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
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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/

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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
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tha laat paga with a printad or llluatratad impraa-
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aion, and anding on tha laat paga with a printad
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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 '* ■

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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«

,,v

THE
W BBUNSWIOK

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-

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.

of
Lns-

The 7th section is as follows :

<<The Master of the Rolls shall be one of the five
" Judges of the Supreme Court, both in 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 fees or allowances
" other than travelling charges on circuits, and the office of
" Master of the Rolls is hereby abolished."

No previous section had increased the present number of
the Judges, which by the constitution of the Supreme Court,
under the Royal Commission, consists of a Chief Justice and
three Assistant Judges; nor is any thing here said of the
tenure, or successor to the additional Judge. It is not,
however, my intention to offer any comment on these
points. Various other provisions then follow, to which it
is unnecessary to refer, and the Act concludes by repealing,
among other Statutes, the Act 1st Vic. c. 8, creating the
office of the Master of the Rolls, and that in addition thereto,
already alluded to. No option whatever is allowed as to
the assumption or refusal of the new office, but, on the Act
coming into force, the Master of the Rolls is absolutely
to become, ex vi legis, a Judge of the Supreme Court.

Without referring at present to other remarkable provi-
sions of the Act, I submit that this enactment is in violation
of the rights conferred on me by my commission, that it is
arbitrary and unconstitutional.

It is quite true ti ac the salary is the same, and it is also
equally true that the duties of a Judge may be from time to
time, altered, augmented or diminished by the Legislature,
provided such alterations are consistent with the nature of
his office. This authority has been largely exercised as
will be seen in the additions from time to time made to the
original duties of the Court of Chancery. But it cannot, I
apprehend, be contended that this right comprises an au-
thority entirely to destroy the office and abolish the officer,
and to transfer him to a different Court and a different

sphere of duties. It would hardly be thought within the
proper limits of this power to transfer a Judge of one of the
Ecclesiastical Courts without his consent to a Court of
Common Law, or what may be more analogous, to have
abolished the office of the English Master of the Rolls, and
place him, regardless of all objections, on the Bench of the
Exchequer, when it exercised the Common Law and Equity
jurisdiction united.

It is quite true that in some States of the adjoining Repub-
lic the notion of vested rights in offices, however stipulated
for by their commissions, is very generally repudiated, and
the power has been largely exercised of abolishing offices
without compensation, and transferring judges from Court
to Court, at the will of the Legislature, regardless of remon-
strance on their part and irrespective of the nature of their
tenure. The same authority has been asserted in its broad-
est terras in this Colony, within a very recent period, and,
if it be admitted, will no doubt justify the present enact-
ment, in which it is in fact assumed. However consistent
with republican notions of liberty and the rights of the judi-
ciary such a principle may be regarded, it has happily for
the public welfare never obtained in England, and has
hitherto been firmly resisted in this Colony by the uniform
tenor of every dispatch from the Colonial office, whatever
the party in power.

As the importance of maintaining unimpaired the rights
of the judiciary has been thus distinctly acknowledged and
avowed as the rule of Her Majesty's Government, I might
perhaps safely rest the question here. But I should be sorry
either to leave room for doubt or suspicion as to the grounds
of my objection to the proposed change personally, or to
shrink from placing before Your Grace those infinitely more
important public considerations which my position as a Co-
lonial Judge has strongly forced upon my conviction. It
would indeed be extremely desirable that the discussion of
a matter of this nature could take place before some pub-

'> '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

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

the
larent
aster
irnor,

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then
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if the
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"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,

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-

8
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-

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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

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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

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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

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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

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

' 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'

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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.