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THE JUDGES AND THE EXECUTIVE IN
TASMANIA.
[From the Australasian.]
It is very singular that the exercise of the prerogative
of mercy, which in the home country
rarely attracts public notice, and scarcely ever
affords matter of public discussion, should in one
or two of the Australian colonies assume so high
a political importance as we find it does. It is only
about three years ago that the Parkes Government
in New South Wales fell from office mainly on
account, of its share in the action leading to the
release of a prisoner, and at that time the exercise
of the prerogative formed the subject of important
correspondence between the Colonial Government
and the Colonial Office. Within the last few days,
the tottering condition of the Robertson Ministry
was rendered more insecure by the exposure of the
discreditable part played by the Premier concern-
ing the release of a prisoner act for which he
had tried to share the responsibility upon the
former Ministry, contrary to the express statement
of the facts of the case made by His Excellency the
Governor. In Tasmania a few months ago the
remission of the sentence of a. prisoner-a proceeding
which involved many very doubtful circumstances
excited a very strong feeling against the Ministry
who advised it, whose conduct in the matter received
the solemn censure of both Houses of Parliament.
And now we find that the same act has also
been the occasion of an important correspondence
between the judges of the Tasmanian Supreme
Court on the one side, and the Governor and his
Ministers on the other. In view of all of these
matters, which have occurred in the last three or
four years, it seems to be the case that, from some
cause or other, social or historical, the exercise
of the pardoning prerogative in some of the
colonies is elevated into a conspicuous position
not favourable to its beneficial working, and
that it is blended with, politics in a degree not
advantageous, to politics ; not tending to increase the
respect due to the law, whose last decisions are thus
dealt with; and not conducive to the proper working
of a prerogative which is neccessary to correct and
to soften the application of general principles of law
to individual and exceptional cases.
The correspondence now before us opens with a
letter addressed by their Honors Chief Justice
Smith and Mr. Justice Dobson to His Excellency
Mr.' Weld, in reference to some of the advice which
had been tendered to His Excellency by his Ministers
regarding the now notorious case of the release of the
woman Louisa Hunt. Their Honors strongly deny
that, as the Governor had been informed, they had
ovorshownany unwillingness togivoadvicorogardiug
the remission of sentences. They state that,
during an experience of 30 years, it has been the
invariable practice to refer all petitions for
remission to the judge who tried the case
before any remission was granted by the Governor.
They would be content to assure His Excellency of
their readiness always to afford any' advice or assistance
in their power with regard to the exercise of
the prerogative of pardon, but that they feel con-
strained to call attention to some novel and
dangerous doctrines which have lately been promised
good" by the present advisers of the Governor.
They point out that in a room, from, the Attorney-General,
commenting on a memorandum of His
Excellency, the opinion is expressed that the
Governor, after receiving and giving due weight to
the advice of his advisers, is "noting in some
measure as a Court of Appeal the only Court of
Appeal provided by the, English law in criminal
cases." Now, their Honors proceed, inas-
much as the common, practice in these cases
is for the Governor to follow the advice of his
Minlaton-as appears from your Excellency's
own memorandum-the proposition amounts practically
to this, that the ' Governor's Ministers
constitute a Court of Appeal from the Supreme
Court in criminal cases." They contend that the
views thus expressed are erroneous, and have no
warrant in law. " Neither the Governor nor the
Governor-in-Council is, in any sense, a Court of
Appeal from the Supreme Court in. criminal any
more than, in civil cases." It would, they observe,
indeed be anomalous if a few gentlemen, not
necessarily possessing any legal knowledge or train-
ing proceeding by no fixed rules bound by no pro
codenta-poworlosB to compel the attendance of a
single witnoBs-nuable to administer an oath to any
witness who might voluntarily attend under no
obligation to give any reasons for their conclusions,
and sitting in secret with closed doors, should
be entrusted with the high and responsible
function of reversing the judgments, of the
Queen's Court for her people in this island
presided over by persons experienced in the laws
-possessing effectual means of compelling the
attendance of witnesses having, power to enforce
the security for the truthfulness PI those witnesses
which is afforded by the notion of an oath, and by
the test of cross-examinations in the presence
of all parties interested, and assisted by the efforts
of opposing counsel proceeding by fixed rules,
found, as the result of the experience and wisdom of
ages, to be best adapted for the investigation of
truth-and sitting in the face of the people with
open doors." Were the rule propounded established,
who, ask their Honors, with a keen
glance at the recent case, " can say that, amidst the
rapid and continual changes of which political life in
the colonies furnishes daily experience, the occasion
might not arise presenting the scandal of the con-
vict's counsel of to-day covering to-morrow the
judgment of the Court against his client ?"
The length of the correspondence prevents us
from following its development in detail. His
Excellency Mr, Weld, in courteously acknowledging
the judges' letter, fully accepts their Honors'
views with regard to the " Court of Appeal "
doctrine, and points out that the view criticised
does not represent advice tendered by Ministers,
but merely an opinion of the Attorney-General,
which His Excellency evidently considers to be as
loosely conceived as expressed. He handed the
judges' letter and his reply to his Ministers, who
appended to it a memorandum. The judges,
in a second letter, replied at length to the
communication of the Governor, and in his
second answers, Mr. Weld declined to continue
the discussion further, as, were he to continue
an argument relative to allegations made by the
judges implying charges against Ministers of the
Crown, he fears that such a discussion would impair
public confidence in the impartiality of the judges,
and would render impossible " ordinary constitutional
relations between himself and the political
party represented by whoever might happen to be
the Minister of the day." The real public interest
of the discussion soon ran out, long before the correspondence
was ended, and probably their Honors
the judges would have done better to have
restricted themselves to a protest against the Attorney-General's
preposterous theory of the Governor-in-Council
being a " Court of Appeals" and
a correction of the statement of their unwillingness
to assist the representative of the Crown with advice
regarding the remission of sentences when applied
to. But although the correspondence between their
Honors and His Excellency was, perhaps, unduly
protracted, and not sufficiently restricted to the essential
points, its tone was unexceptionable. Nothing
in it was incompatible with the highest respect for
the dignified position of the Governor on the onside
and the judges on the other, or calculated to in the
slightest degree impair their amicable personal relations.
It is impossible to express a similar opinion of the
style and spirit of the contributions made to the discussion
by the various memorandums of the Ministers
upon the letters handed to them by the
Governor. These documents contain language of the
most offensive character with regard to the judges,
whoareaeousedof " special pleading," of disingenuous
" and " inquisitorial " conduct, of " dis-
courtesy," "partisanship," and "sophistry." Indeed,
the papers bearing the illustrious signatures
of Thomas Reibey," " Charles Meredith," " C.
O'Reilly, and " William Lock. Crowther," by
their poverty of argument, coarse vulgarity of style,
and insulting disrespect, far more resemble stump
speeches than state papers deliberately penned by
Ministers of the Crown. Throughout they are
utterly wanting in a proper feeling of respect for
the judicial office-a respect for which it is the
duty of every Government to set the chief example,
and which no Ministers can disregard without forfeiting
their own claim to respect from the community
over which they are placed.
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