LETTER TO THE RIGHT HONBLE. LORD STANLEY, ON THE ADMINISTRATION OF JUSTICE IN NEW ZEALAND.
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TO THE RIGHT HONBLE. LORD STANLEY,
&c. &c. &c.
Administration of Justice in New Zealand.
I take the liberty of addressing your Lordship on the present inefficient state of the administration of Justice in New Zealand, and the inadequacy of the tribunals hitherto established to give security to person and property; and I trust the claim I shall establish upon your Lordship's favourable consideration will justify me in thus trespassing on your attention.
Before I attempt to prove the inadequacy of the existing means of administering justice, it is necessary to give a brief outline of what has been done, so as to mark precisely the point where the existing 1 tribunals fall short of what the circumstances of the colony require. I beg also to observe at the very outset, that it is no part of my design to institute a very rigid criticism of such tribunals as have been established--still less to frame a system of judicature complete in all its parts. I choose rather to give the Courts of New Zealand credit for performing all that is ascribed to
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or expected of them, and to confine myself to the task of showing, that in order to complete the security of person and property, there remains much--very much, which the existing tribunals cannot perform.
Your Lordship is doubtless aware that, for a long time after the arrival of the Governor of New Zealand at the Bay of Islands, the settlers who, to the number of 1200, had previously established themselves at Port Nicholson, were left without the presence of a magistrate. As the Governor was known to be at the Bay of Islands, the colonists were in daily expectation of being visited by the Governor in person, or by an officer of the government charged with the duty of establishing the supremacy of the law. They accordingly waited several weeks before they took a single step for mutual protection, and then they did no more than they were absolutely obliged to do. 2
It should be observed, that a Committee of the Colonists had been chosen in England to watch over the interests of the settlers, and to adopt such measures as might seem to them necessary for the organization of the colonists before their departure, and for their protection after their arrival, in case of need. As soon as all immediate hope of a visit from the Governor, or his representative, ceased, this committee was called together at Port Nicholson. In the absence of all restraining authority, some little irregularities had occurred; and for the purpose of protecting society against such acts of individual aggression, several constables and a magistrate were chosen. The persons so chosen were men on whose prudence and firmness the public could rely, and the admirable manner in which they performed their functions justified the choice of their fellow
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colonists. The fulfilment of their duties, however, was greatly-facilitated by the orderly conduct of the settlers. On this point Mr. Petre is confirmed by every account which has reached this country--even by the reports of the Colonial Secretary, whom there is reason for viewing as a hostile witness. But among a community of twelve hundred persons, living without a government, and with some causes of discontent in active operation, with the crews of several ships always in the harbour, it was, at the period in question, beginning to be painfully apparent that restraints on their hitherto unbridled actions were necessary. The colonists, we are assured by Mr. Petre, felt the want of protection; and it was evident to every one, that unless some efficient plan was immediately adopted, a state of very great disorder and insecurity would arise.
I must here remind your Lordship, that at this time Her Majesty's sovereignty had been denied by the government, and in support of this view, Acts of Parliament had been quoted, 3 which spoke of New Zealand as a territory "not within Her Majesty's dominions," and asserted "that King William IV. made the most solemn and authentic declaration which it was possible to make, that New Zealand was a substantive and independent. state." At that time the Governor of New Zealand was engaged in acquiring the sovereignty of New Zealand by instalments; and at the period in question, he had only succeeded in establishing the Queen's authority throughout the small peninsula lying to the northward of the river Thames--all the rest of New Zealand, including the district of Port Nicholson, being still deemed a substantive and independent state. The colonists, therefore, considered themselves as Englishmen residing in a foreign country; and in that character it must be admitted
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they pursued the only course open to them. They obtained from the native chiefs--the sovereigns under whom they lived--authority to exercise their own laws. This, or some equivalent course, was rendered necessary by the peculiar circumstances in the midst of which they were placed; and it was justified by the unprotected state in which they were left for nearly six months after the arrival of the Queen's representative, charged as he was, to govern and protect them. The colonists never pretended to have any other object in view than their own protection, and that object was completely attained; for good order was maintained throughout the settlement in a manner perfectly satisfactory to the people.
This, my Lord, I believe to be a faithful statement of the proceedings which the Governor considered to amount to high treason! His Excellency probably wrote upon the reports of others who thought themselves interested in misrepresenting. Be this as it may, as I am anxious to avoid saying anything in this place which may bear the interpretation of a censure on the Governor's conduct, I will simply ask your Lordship, whether from first to last there has been anything in the conduct of the Settlers to justify the expressions of hostility--I had almost said of hate--made use of in his Excellency's dispatch of 25th May, 1840; nay, may I not respectfully appeal to your Lordship, as a Minister of the Crown, in favour of the admirable and orderly conduct of the Port Nicholson settlers, under the most trying circumstances. Much has been written about them--much in their defence. I do not ask your Lordship to approve of all that has been so written, I do not even ask that your Lordship should receive upon trust what I am now writing, but I do ask you to weigh strictly, but impartially, the whole conduct of that noble body of men who formed the first colony, and then I boldly appeal to your Lordship's candour, whether they merit the epithet of traitors. But I
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wrong your Lordship to put a question implying doubt, and if the general conduct of the Settlers were in question, and 1 were applied to for their character, I should, without the slightest hesitation, refer to your Lordship, as Colonial Minister, for testimony in their favour.
I now come to the second epoch of the history of the administration of justice in Port Nicholson. In consequence of the reports which reached his Excellency the Governor, he immediately dispatched his secretary with an armed force to subdue the supposed traitors of Port Nicholson. Supposing his Excellency really to have believed the absurd account which was given him, nay perhaps, under any circumstances, his promptness is entitled to praise. It is one of the few advantages we are entitled to expect at the hands of a naval or military governor--a sort of set-off against the many evils incidental to such appointments; but on the other hand, it is to be regretted that his Excellency did not previously inform himself of the actual state of the settlers, or he might have been saved the mortification he must have suffered, and avoided the ridicule he incurred by sending an armed force to subdue men who were ready and willing to be subdued--who had been waiting with longing anxiety for his Excellency's presence, and whose only complaint at that time was, that although sent out to protect and govern a colony already established, he had not informed himself of their condition, and had treated them rather as alien enemies than as subjects of the Queen.
Lieutenant Shortland, with a body of troops, reached the settlement in June, and to his great astonishment found the people open-armed to receive him. The British flag was hoisted and the Governor's proclamation was read, declaring the whole of New Zealand a British Colony, and so laughing
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to scorn the former doctrine of "a substantive and independent state." Lieutenant Shortland himself speaks of the satisfaction of the colonists at this event--a satisfaction which had its origin in the belief that they should have the substantial protection of British law as well as the mere name. I will here offer for your Lordship's consideration Mr. Petre's description of the state of opinion at Port Nicholson, immediately subsequent to Lieutenant Shortland's visit.
"The satisfaction which the Colonists felt at the arrival of the government authorities, was changed to disappointment when it was found how little was likely to be done to promote the security of property. We had ourselves provided most effectually for the correction of such offences as the magistrate may take cognizance of; and we fully expected that the arrival of Lieutenant Shortland would be followed by the establishment of higher courts of criminal and civil jurisdiction; in short, we could not doubt that government in all its branches--that everything which was necessary to give security to person and property, would be established among us. No change, however, took place, except in the persons of the magistrates, and the source of their authority. All that they did--all that they had authority to do--was to hold sittings similar to those of the justices of the peace in this country, taking cognizance only of such offences as one or two justices may lawfully adjudicate upon. Even this amount of protection was of short duration; for, from the time when Lieutenant Shortland quitted Port Nicholson in September, until the month of December, 1840, Port Nicholson had only one justice of the peace; so that all offences which by act of Parliament require 'two justices' to adjudicate upon, were either left unpunished, or were punished illegally at the peril of the single justice. It followed from this, that practically, the protection of
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person and property would have been weaker in Port Nicholson after the visit of Mr. Shortland than before, had it not been that the Queen's authority produced a considerable moral effect, which in some measure compensated for the inadequacy of what was established.
"The want of some tribunal for the recovery of debts, and especially of small debts, has been grievously felt by the settlers; and had the provisional government continued a few weeks longer, there is no doubt that it would have devised some method of supplying the want. Many of the retailers literally lived upon the importing merchants, of whom they bought on credit; and under the security that their creditors had no means of recovering the debts due to them, they made use of all the ready money they could muster, in making purchases out of the Sydney ships which arrived at Port Nicholson, the supercargoes of which only sold for cash.
"On the establishment of regular government, we had a fair right to expect that something more would be done for the security of property than we were able to do for ourselves. We expected that a court of requests would be established for the recovery of small debts. We expected that the institution of civil courts would immediately follow. Yet, up to the time I left Wellington, not a single step had been taken in these essential matters; and it seemed as if the government, which ought to have protected us, was desirous of driving the settlement into a state of disorganization and anarchy. Yet it has sustained itself under all these disadvantages, though, of course, under numerous inconveniences from which the colonists ought to have been protected."
The want of a competent criminal tribunal was also severely felt at Port Nicholson, both by individuals and by society at large. The punishment of offences was, as Mr.
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Petre says, confined to such as two justices, and afterwards as one, could legally take cognizance of; but until very recently, no tribunal capable of trying felonies or misdemeanours existed. "Drunkenness," says Mr. Petre, "could be restrained, assaults punished, and some few other delinquencies could be summarily treated; but whenever a trial was necessary, the power of the justices ceased--it was confined to mere committal. Now, in practice, the effect of this was either oppressive to the accused, or led to the ultimate impunity of the offender. A committal for trial, unless the delinquent could find and be admitted to bail, amounted to imprisonment for an indefinite period; and when an offender was held to bail, he felt pretty secure that no ultimate appearance was at all likely to be required of him."
Such was the state of the administration of justice from the month of June, 1840, to October, 1841. They had justices clothed with a power to commit, but without a power to try. They could fill the gaol, but not deliver it. In civil matters no dispute of any kind could be settled; and nothing, I repeat, but the good conduct of the people, whom his Excellency stigmatized as traitors, could have held society together. Yet there can be no doubt that better protection could have been afforded with means which were within his Excellency's reach. As a dependency of New South Wales, courts of requests and of quarter sessions might have been established; indeed, a proclamation was issued by Sir George Gipps, dated 4th January, 1841, directing that courts of requests should be held quarterly, the first quarter being in April; yet this proclamation was disregarded, and it was not until very recently that a court of requests was held under an ordinance of the Governor and Council.
In the month of September last Mr. Martin, who had been appointed Chief Justice of New Zealand, reached the Colony
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in that capacity. Soon after his arrival, two bills were introduced into the Legislative Council and passed; the one for the establishment of Courts of Requests, and the other of Courts of Quarter Sessions. To the extent of the powers conferred under these ordinances upon the respective tribunals, there is no doubt that they are calculated to promote the ends of justice. The Courts of Quarter Sessions at first appointed to be held at Wellington, Auckland, and Russell (a place without people), will probably be extended to Hokianga, New Plymouth, and Nelson; and as the ordinance is silent as to the offences over which the Sessions have jurisdiction, it may be presumed that they may legally try all offences except high treason, perjury, and forgery; but in practice, it is probable the same course will be pursued as in this country with regard to such offences as render the accused, if convicted, liable to transportation for a long term, or to death, or where the cases are likely to involve difficult points of law, namely, removal to the superior tribunals. The act lately passed in this country, limiting the jurisdiction of the Sessions, does not extend to our Colonies; and in New Zealand the disposition of the Council is rather to enlarge the summary jurisdiction of magistrates 4 than to limit either their jurisdiction or that of the Sessions. Nor does such limitation appear at all necessary. The proper course is, to render the tribunal efficient, by the appointment of a competent professional chairman: limitation of jurisdiction may be regarded as an expedient to reduce it to the capacity of the tribunal. I have read with great care all the proceedings of the Court of Quarter Sessions at Wellington, and they seem to me to be unexceptionable. The chairman, Mr. Halswell, is an English barrister; and from the manner in which he has performed his duty, he appears to have secured the respect of the bar, and of the attorneys
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practising in his court. 5 With the proceedings of the other courts I am not so well acquainted; but if care be taken that the several chairs be filled by intelligent professional chairmen, I have no reason to doubt the sufficiency of the ordinance to provide admirable tribunal for the trial of all but the great offences.
The Courts of Requests have jurisdiction in debt, assumpsit, and, it seems, in other forms of action--though the jurisdiction clause is very inartificially worded, --where the debt, claim, or cause of action does not exceed £50. To some persons this may seem a large amount to entrust to the adjudication of a Court of Requests, the proceedings of which are necessarily summary, and which has power to examine the parties; but your Lordship is aware that, in the Australian Colonies, that the erection of Courts of Requests with large jurisdiction has been found to work well, and I see nothing in the ordinance of the 4th and 5th Vic, No. 6, to induce a belief that it will fail to give security to property up to the extent of the powers it confers. The same remark that I have ventured to make to your Lordship when speaking of the Courts of Quarter Sessions applies to the Courts of Requests. To render them perfectly subservient to the ends of justice, they must be kept in a state of intrinsic efficiency by means of duly-qualified chairmen. A professional
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chairman, acquainted with the law, and especially with the technical rules of evidence, will, by securing the efficiency of the tribunal, secure also the respect both of the bar and of suitors. If the tribunal be perfectly trust-worthy, there can be no valid objection to the extent of jurisdiction. The jealousy with which the public and the profession are in the habit of watching all legislative attempts to extend jurisdiction, arises entirely out of the inefficiency of many of our inferior tribunals. As long as the dispensing of justice continues to be an aristocratic pastime, so long ought we to be jealous of any extension of jurisdiction, and seek rather --as has just been done in the Sessions' Jurisdiction Act-- to pare down the law to suit the tribunal--in other words, to adapt it to the meanest capacity. By appointing competent professional chairmen, and by increasing the frequency of their sittings, the Courts of Requests, as well as the Courts of Quarter Sessions, may be kept in a state of efficiency for the due administration of justice to the extent of their jurisdiction; but if any other recommendation to office than the all-important one of fitness be permitted to govern future appointments, the courts in question will become mischievous, and will inevitably be regarded as the opprobrium of the local government of New Zealand.
I will take it for granted then, that at the present time there is no Settlement in New Zealand, of any magnitude, which does not enjoy a Court of Quarter Sessions, and a Court of requests. Nelson, with its population of more than 2,300, and New Plymouth, with its population of 800, cannot, with any decency, be placed on a worse footing than the nominal town of Russell, without any population at all; or even than Auckland, with 1,500, or according to the largest estimate, 2,000 people. I will admit further, that before the present time, these courts have been rendered in every respect efficient for the attainment of the objects for which they were designed. In other words, I assume, that at the present
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moment, all the settlements in New Zealand are furnished with means for the recovery of small debts, and the punishment of small offences.
But your Lordship will perceive that this leaves untouched all those offences over which the Courts of Quarter Sessions have no legal or customary jurisdiction, and all causes from the cognizance of which the Courts of Requests are excluded. For these two classes of cases there is almost a total absence of judicial remedy. A mere enumeration of a few cases under both classes, will show how urgent must be the necessity for superior tribunals. In forgery and perjury, the first a crime of not unusual occurrence in a mercantile community, the sessions have no jurisdiction whatever. An indictment for these offences cannot be found at sessions. In crimes of violence--a numerous class -- in burglary and housebreaking, in abduction, bigamy, false personation, offences against the coin of the realm and against the post-office acts, though indictments may legally be found, it is not usual to try them, it having been long the practice, even before the recent act, to remove them to the assizes, on the motion of counsel.
In civil cases, the ordinance establishing Courts of Requests, excludes jurisdiction where the cause of action exceeds £50, and where the title to land is brought in question. Now, your Lordship is without doubt well aware, that in new colonies, where surveying is necessarily somewhat loosely conducted, boundaries are but ill-defined, and disputes respecting them, each involving a question of title, occur very frequently. I do not here allude to the claims to land, because they are the subject of a special tribunal; I refer simply to disputes between individual and individual, independently of the question of claim, which class of cases will probably become more numerous after the original claims shall have been finally settled.
For the determination of these two classes of cases, a
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tribunal has been erected, called the Supreme Court of New Zealand. The place of its location is Auckland, and it is presided over by Chief Justice Martin--a gentleman whom I believe to be admirably qualified for the office he fills. Auckland also enjoys the presence of an Attorney-General, competent to discharge the duties imposed upon him, with all the machinery necessary for a superior tribunal. It seems therefore that for all purposes, Auckland is amply provided with means for the due administration of justice. Beyond this nothing has been done. Wellington, Nelson, New Plymouth, and the secondary settlements on Cook's Straits, are wholly unprovided with the means of obtaining justice in the two classes of cases above particularised; for it is idle to tell the settlers they may resort to Auckland, remote from the seat of population, and not to be reached without a sea voyage, which sometimes occupies weeks.
To exhibit the magnitude of the evil of a single Court of Justice placed at any one spot, and more especially at Auckland, which is not central, which is remote from the great bulk of the population, and is not easily accessible, it is necessary that I should show, as nearly as the data within my reach will permit, the population of the several settlements in New Zealand. With regard to those on Cook's Straits we have accurate data, but the population of all the other settlements must be taken on the statements of individuals, or the reports of newspapers.
The number of Emigrants dispatched to Port Nicholson, to the present date, is 4,534; of these some have been between two and three years in the colony, whilst a few are still on their way. Allowing the population to have increased according to the rate which prevails in America, from the excess of births over deaths, and making no allowance for the fact that the emigrants were selected as to age and sex, about 300 must be added to the amount of emigration. The population has also been increased by immigra-
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tion from the Australian colonies, and by the absorption of the whaling population along the coast; against this, a few have quitted the colony, leaving however a considerable balance in favour of Wellington; but as I cannot ascertain it, I will take no notice of it. A portion of the Port Nicholson population has been drawn off to form the Wanganui settlement, and a further portion will shortly be required to occupy the beautiful district of Manawatu.
To Nelson the emigration, at this time, amounts to 2,391, of which about one-fifth is now on the way. Emigrants will also leave this Country until the close of the year. This population, selected as to age and sex, will also have increased by the excess of births; but it would be premature to make any allowance for this or any other source of increase.
To New Plymouth the emigration amounts to 836, to which I shall make no addition, for the reasons stated when speaking of Nelson.
The population of the northern portion of the Island I have no means of ascertaining; probably your Lordship is possessed of some data on the subject, though I apprehend none of a very trustworthy character are in existence. The population of Auckland has been variously stated, at from 1,500 to 2,000. These statements have been made by persons interested in swelling the importance of the place, and may therefore be regarded with suspicion. Nevertheless, I will take the larger number, as if it be not strictly accurate, it will no doubt become so in a very short time. Russell, as I have already stated, has no population. It was, I believe, intended for the capital; but on the choice of the site of Auckland, it became what may be called the county or district town of the Bay of Islands. Its extreme inconvenience will probably prevent its ever acquiring any population; and the administrative and judicial establishments cannot be kept there without injustice to the population of the district. The chosen seat of population, as your Lordship is aware, is
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Kororarika, which, with the population around the Bay, is said to amount to about 900. There are also about 200 at and around Hokianga on the west coast, and another 100 may be added for the population of Manoukau and Kaipara, which comprise the whole of the settled parts of the northern peninsula with which Auckland is connected.
Between Auckland and the settlements in its neighbourhood, as well as between the settlements on Cook's Straits, there will be a constant fluctuation of population. The rate of wages will regulate the tide of population; but this fluctuation does not at all affect my statements, even should it be much more considerable than there is any reason to anticipate. Throwing the above figures into a table, we have--
Wellington and Port Nicholson
Cloudy Bay, Queen Charlotte's Sound, and population to the southward
Bay of Islands
Total European Population.
To this should be added a considerable native population living in close connection with the settlers of Wellington, Auckland, and the Bay of Islands, who have now a legal right to the protection of the government.
I am now, my Lord, in a position to ask most respectfully, but at the same time most earnestly, how it is possible the
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Supreme Court of Auckland can protect the persons and property of the eight thousand subjects of the Queen residing at the several settlements on Cook's Straits? Allowing that the inferior courts fulfil their respective functions most perfectly and satisfactorily--admitting that the Supreme Court just established is as perfect an instrument for the administration of justice, within a reasonable distance of Auckland, as could be desired, we still come to the question: How is a similar purpose to be effected for the settlements of Wellington, Nelson, and New Plymouth, and the districts around them?
Three several modes of fulfilling the object in question present themselves--;
1. By the establishment of circuits and half-yearly assizes, as in this country.
2. By the institution of separate jurisdictions, with one puisne judge for each district or settlement.
3. By an union of the two methods: that is, by establishing one or two judicial districts, with a judge for each, and with circuits from each centre to the smaller settlements within the respective districts.
1. To the first plan of circuits the objections appear to me, in the present state of New Zealand, insuperable. From the physical character of New Zealand, --without navigable rivers--without any extent of level country or connected valleys as yet discovered, to favour the formation of roads or canals, --internal communications are at present out of the question. As population becomes considerable, no doubt the several settlements will be connected by rivers, canals, and roads; but at the present moment such internal communication must be regarded as a remote contingency. At present, it frequently requires a voyage of ten, fourteen, and even twenty days, to proceed from Auckland to the Straits round the East Cape; so that the time, the expense, and even the danger, attending circuits, render them ill adapted to the circumstances of New Zealand. Even in this country.
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perfect as our means of communication are, it may be doubted whether the circuits afford the best means of facilitating the administration of justice; and for the circumstances of New Zealand I repeat, they are wholly unfit. Even with additional judges, the delay would amount to a denial of justice; for it is clear that if the settlements on Cook's Straits were well served, those in the northern peninsula must be neglected. Indeed, to conduct the business of the district assize courts at all, a corps of judges would be required at least twice as numerous as would be needed to assign one local judge to each settlement.
2. It seems to me, therefore, that the only practical mode of administering justice in New Zealand, is by erecting a superior court, under a single judge, in every settlement or district having a certain amount of population. This method has the merit of economy; and it would admit of four law-terms in the year, and so promote the speedy administration of justice, which would be utterly impossible under the circuit system. The several district courts being presided over by a single judge, the attention of the Chief Justice not being so much distracted by circuit duties, might be concentrated, so to speak, to that general supervision of the administration of justice which his office entitles the settlers to expect at his hands. As Mr. Justice Martin was called "chief" judge, there is some reason to believe that the appointment of other judges was contemplated by the late government. Such an intention, I admit, is consistent with either system under contemplation; but what I beg respectfully to press upon your Lordship is, that the circuit system would require more judges than the local and district system; that it would be attended with delay, expense, and risk; that courts could not be held with that frequency which justice absolutely demands; that it has no one advantage to recommend it; and that the difficulties attending it are so great as to entitle me to designate it as utterly impracticable.
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3. A consideration of the locality and extent of the several settlements may perhaps lead your Lordship to the practical conclusion, that the two systems may be combined so as to promote, instead of impede the ends of justice. In adapting institutions to new countries, it is absolutely necessary to yield in some measure to what may be called the spontaneous course of population. The Bay of Islands, for instance, has been the chosen resort of Europeans for nearly thirty years. Port Nicholson was fixed upon as the site of the first colony sent out under the auspices of the company before the Governor sailed from this country. Again, swarms, so to speak, will continually quit the older settlements, to form secondary towns on spots which the people themselves deem eligible. We may, perhaps, think that we might in some cases order matters better; but the whole history of colonization, and especially that of New Zealand, shows that although we may in some measure direct the course of population, we cannot controul it. Hence, I repeat, institutions must be adapted to the circumstances of the colony, if we desire to promote the peace and happiness of the population.
With this view, the judge of the Auckland district might, without inconvenience, hold Courts of Oyer and Terminer and General Gaol Delivery once a quarter, at the Bay of Islands; and as Hokianga is within thirty miles of Kororarika, and the road is practicable, and is capable of being rendered more so, no inconvenience could arise from requiring suitors and witnesses to attend the Court at the latter place. In like manner, the judge of the district of Wellington might make a short and comparatively easy circuit to Wanganui and New Plymouth; whilst the judge of the district of Nelson might have assigned to him such secondary settlements as may hereafter be established by voluntary swarms from the other colonies.
Let me here remind your Lordship, that in all our North
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American colonies justice is administered under the district system, with a distinct judicial establishment for each. The districts of Quebec and Montreal have each a Superior Court of original jurisdiction, with a Chief Justice, and three puisne judges respectively, although the distance between the cities is only 180 miles, and which by means of steam-boats, is now performed in from ten to eighteen hours. Three Rivers, also, the district lying midway between Quebec and Montreal, has its Superior Court, with a single judge. Formerly the judges made circuits to the outlying parts of the districts; but for some years, two "inferior districts" have been erected, those of St. Francis and Gaspe, each having a single judge.
I will not contend, for I do not believe that the ends of justice are promoted by providing four judges instead of one; all that I desire to impress upon your Lordship is, that the seat of justice should be erected at Wellington and at Nelson; and I propose a single judge, not so much on the score of economy--though that is always a great recommendation--as because I believe justice is better administered by one, than by a multiplicity of judges. A large portion of the business of administering justice, is indeed performed by a single judge in this country. A single judge presides at Nisi Prius trials, and at criminal trials, except in some rare cases. In bankruptcy, a single commissioner is found to perform the judicial function far better than the old "Lists;" and in the case of the Quarter Sessions, the Borough Courts, with a professional Recorder, are so superior to the County Sessions' Courts, with a bench of Magistrates, that I feel quite convinced the contrast will, at no distant period, induce a reformation of the latter, by the appointment of a paid professional Chairman. But the strongest instance in favour of a single judge, is afforded by the Courts of Equity in this country. In equity, we think a
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single judge perfectly competent to decide the most difficult questions affecting the property of individuals; although, if precisely analogous questions of law arise, they are argued before, and are determined by, the judges in banco.
But even the advantage of a bench of judges, to sit in error, maybe enjoyed with facility and economy by an union of the three district judges, forming a Court of Appeals, in certain cases, from the decisions of a single judge. By this tribunal, formed out of materials already at hand, motions for new trials, for judgment non obstante veredicto, for leave to enter a verdict, or a nonsuit on points reserved by the judges, and so forth, would be determined; leaving original issues of law raised upon the record, and which in this country are argued before the Courts sitting in banco, to be determined by the district judge.
The very least, then, that can be done to render the administration of justice efficient in New Zealand, is to erect a Supreme Court, with a single judge, at Wellington, and another at Nelson. If a court of original jurisdiction be necessary at Auckland, it is doubly so at Wellington, Wellington has twice the population of Auckland, and is the metropolis of a producing and commercial population of 8,000 souls. The transactions which are likely to give rise to litigation in the neighbourhood of Wellington are more numerous and extensive than those which arise at or near Auckland. But justice should not be regulated by such comparisons. I am not seeking to deprive Auckland of its Supreme Court, I am merely respectfully urging the claims of Wellington and Nelson to an equal measure of justice to that which has just been conferred upon Auckland.
I do not think it necessary to touch upon the question of a higher Court of Appeals than the tribunal proposed to be formed by the union of the three judges. Whether they shall be endowed with more extensive powers, or whether it will
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be found necessary to erect a separate tribunal as the colony grows in population and wealth, is not at this moment a pressing question.
In like manner, I do not trouble your Lordship with questions respecting improvements, which the people of the colony are competent to urge upon the Governor and Council--such as the erection of Courts of Quarter Sessions and Requests, at New Plymouth, Wanganui, and at such other places as may acquire a certain population. The disposition which Chief Justice Martin has already evinced to improve the administration of the law, will no doubt induce him to propose to the Council some general rule on the subject, without waiting for the demands of the colonists, which seldom arise until evil has occurred. But the measure of improvement which, on behalf of the people of Wellington and Nelson, I now respectfully solicit, must originate with your Lordship; and I venture to hope that I have succeeded in shewing a strong case for your Lordship's immediate action.
Your Lordship's obedient humble Servant,
H. S. CHAPMAN.
Farrar's Buildings, Temple,
30th July, 1842.
Postscript. --To render the view of the administration of justice in New Zealand, which I have attempted to place before your Lordship, complete, I here print an ordinance which has just passed the council, for extending the powers of Police Magistrates.
Viewed with English eyes, it certainly seems to carry the
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summary jurisdiction of the justices to a dangerous extent. In dispensing with trial by jury, it is certainly a violation of what has been called the constitutional right of Englishmen. If there existed in New Zealand an establishment for the custody and reformation of juvenile offenders, including a well conducted school, the power of a single police magistrate to imprison for six months, would be excusable; but it may be some time before such an institution is to be found in New Zealand, and until then, the power to imprison for six months must be deemed too large to be confided to justices out of sessions. Where a person of full age makes confession, I do not see any objection to dealing with him summarily for small offences; but to give to magistrates out of sessions power to imprison for twelve months, appears to me to be another error of excess. If the police magistrates be professional men, one may perhaps be safely deemed equal to two ordinary justices; first, because they will probably have more knowledge, and, second, because they have less local prejudice. But if they be merely official personages, obliged to consult "Murphy's Australian Justice" before they act, and in the habit of clearing the court before they consult in secret that useful manual of convict law, I submit that the clause is bad.
The great defect of the Act is that it contains no appeal clause. In nearly every Act of Parliament giving summary jurisdiction to justices to imprison for three months, an appeal to the quarter sessions is given, but here the party grieved has no remedy--he must submit to any injustice which ignorance or malevolence may impose.
Bill for extending the powers of Police Magistrates.
Preamble. --Whereas great evils have been found to arise from the imprisonment of persons before trial, and it is desirable to diminish, as far as may be safely done, the number of cases in which such imprisonment is by law required.
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Certain charges of Larceny to be dealt with summarily. --2. Be it enacted, by his Excellency the Governor of New Zealand, with the advice and consent of the Legislative Council thereof as follows; all charges of larceny, where the value of the property shall not exceed twenty shillings, and where the age of the party charged shall not exceed fifteen years, shall be brought before the Police Magistrate of the district within which the offence shall be alleged to have been committed, who, upon being satisfied of the value of the property, and the age of the party charged, shall hear the evidence for the prosecution and defence, and in case of conviction, shall sentence the offender to be imprisoned for any period not exceeding six calendar months. Such adjudication shall be final, although it should subsequently be proved that the value of the property, and the age of the party charged, shall in fact exceed the aforesaid limits.
Trivial cases may be dismissed. --2. When upon such charge as aforesaid, the circumstances of the case shall appear to the Police Magistrate to be of so trivial a nature as to be unfit for prosecution, he shall have power to dismiss the case, although a felony may have been proved.
If party make confession he may be dealt with summarily. --3. On any charge of larceny before such Police Magistrate, where the value of the property stolen shall not exceed five pounds, whatever may be the age of the party charged, if such party shall, after hearing the information and evidence against him, voluntarily confess the offence, the Police Magistrate shall take such confession, and shall sentence the offender to imprisonment for any period not exceeding twelve calendar months.
Offenders to be committed or held to bail by Police Magistrate only. --4. Before any person shall be committed for trial, or held to bail to take his trial on any charge of felony, or misdemeanor, he shall be brought before the Police Magistrate of the district within which the offence shall be alleged to have been committed, who shall enquire into the case, and commit the party so charged, or hold him to bail, or suffer him to go at large on his own recognizances, or dismiss the case, as circumstances may require.
One Police Magistrate to have the power of two Justices. --5. Every Police Magistrate shall have all such powers of dealing summarily with cases of assault, and of admitting to bail persons charged with felony, as may by law be exercised by any two Justices of the Peace.
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Depositions. --6. In every case where any person shall be so committed or held to bail, the depositions taken in the case shall, as soon as conveniently may be, be transmitted by the Police Magistrate to the Crown Prosecutor of the district, or, where there shall be no Crown Prosecutor, to the Clerk of the Peace, or Clerk of the Crown, as the case may require.
All persons committed or held to hail to he brought to trial. -- 7. Every person so committed, or held to bail, shall be brought to trial upon an indictment signed by the Crown Prosecutor, or where there shall be no Crown Prosecutor, by the Attorney-General.
Fees. --8. All fees received by any Police Magistrate, shall be accounted for quarterly to the Colonial Treasurer, or Treasurer of the county or district (as the case may be), and shall be chargeable with the salary of the Police Magistrate and the current expenses of the Police Office.
Commencement of Ordinance. --9. This ordinance shall come into operation on the first day of March, 1842.