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The first subject to which I should wish to call your attention, and one to which I believe, His Majesty's Ministers have attached the greatest importance, is the Criminal Jurisdiction of the Colony. This is, undoubtedly, imperfect in every point of view; but the greatest defect, and the one which seems to make the strongest impressions upon the minds of the publick, is the variety of duties which are by the Patent imposed upon the Judge-Advocate, which seem to be incompatible with the due performance of his duties as a judge. In the first instance, he is obliged to prepare and examine into the evidence for the prosecution. He is, in fact, the prosecutor. He has then to draw up the indictment, of the legality of which he is afterwards to judge, and it is by him to be exhibited to the court, and is in the nature of an information exhibited by His Majesty's Attorney-General.
The execution of these previous duties is apt to bias the mind and to render a proper attention to the subsequent and most important part of his office more difficult, or, at least, more open to suspicion.
By the Patent, the Judge-Advocate is constituted the president of the Criminal Court, and it is reasonable to suppose that, where he is a professional man, the rest of the members of the court will be greatly influenced by his opinion, which, therefore, should be as little exposed as possible to the danger of previous suspicion.
Another defect which I should wish to point out to you, sir, upon this subject is the very great similarity the court, as it is at present constituted, hears to a court-martial. [28] This similarity, and the nature and form of its proceedings its meeting at ten o'clock, and adjournment regularly at three, and other circumstances, also have made many of the publick suppose that it was, in fact, a court-martial; and many of those officers who have often sat as members of the court have always considered it as a court-martial.
I am fearful, sir, that I have already taken up too much of your time; yet my anxiety to represent to you, as far as I am able, the true state of the judicial department of the colony, induces me to trespass a little longer upon it, in order to give you some idea of the mode of doing business in the Court of Civil Judicature, and of the inherent defects of its constitution.
This court, sir, was very well calculated to answer the purposes for which it was created in the infant state of the colony; but as the population has very much increased since its first establishment, and with that the trade of the colony, it has now become very deficient in many respects. It is a court that is well adapted for the purpose of investigating questions of simple debt or breach of contract; but the very summary mode of its proceedings are but ill-suited to the deciding of questions of a complicated nature, when the interests of third parties are concerned; yet questions of this nature are frequently brought before it.
There are some cases indeed in which I have thought myself obliged to depart from the strict letter of the Patent in order to do justice.
The Patent directs "that upon complaint to be made in writing to the said court by any person against any other person residing, etc., of any cause of suit, the said court shall or may issue a warrant in writing under the hand and seal of the said Judge-Advocate" against the party complained of. It appears from hence that these warrants are issuable strictly only during the sitting of the Civil Court. But the number of writs applied for is so great, and the residences of the persons upon whom they are to be served are frequently so distant, and in cases when defendants are about to leave the colony, the necessity of issuing writs immediately is so pressing, that I have taken upon myself to sign and issue writs at all times, even when a Court of Civil Judicature is not sitting, making them returnable before the next court. This mode has the good effects of preventing defendants from defrauding their just creditors, and at the same time of giving them an opportunity of preparing their defence to the action and also of saving the time of the court which would otherwise be completely occupied in the issuing of writs, and, on the other hand, no injustice is done to either party.
Between the 1st day of January last and the 19th day of March, when the Civil Court met, between 350 and 400 writs were issued, one of which was for the sum of £20,000, upon which £10,000 was paid in part, and the action stayed upon security being given for the rest; another for £30,000 in an action of false imprisonment, and a third for £10,000 in a similar action. Besides these, there were actions brought which were referred to arbitrators by order of the court on consent of parties, which involved property to the alleged amount of £30,000. Previous to the meeting of the court I ordered all actions meant to be tried to be entered with my clerk, and tried them in the order entered. The actions entered amounted to 251, of which 240 were actually tried. The amount of the verdicts given by the court, exclusive of costs, was £4,585. 17s. 6d. [29] Except Saturdays and Sundays, the court sat every day for three weeks.
The meetings of the courts are uncertain; but it would be greatly to the advantage of the publick were they to meet four times a year at certain fixed times, for the writs issued could then be made returnable at a day certain, which now cannot always be the case.
It is a great hardship upon the poorer suitors of the court, and those who reside at a great distance, that there are no proper agents or attornies whom they can employ to manage such actions as they are obliged to bring for the recovery of the debts due to them. This want of proper attornies falls also very heavily upon the Judge-Advocate, as very much of his time is taken up by attending to complaints which are perfectly frivolous; and in those which appear to rest on good grounds he is often obliged to give his advice, altho' it is a subsequent part of his duty to determine upon them.
This is peculiarly unpleasant to a person sitting as a judge, whose wish and duty it is to come into court perfectly unbiased.
If a few - three or, at most, four -- attornies were to come out here, whose characters were respectable, complainants would naturally have recourse to them to be informed of the legal mode of obtaining redress, and the expence necessarily incurred by them in adopting this step would be the means of preventing any frivolous litigation.
With a trifling encouragement afforded them by government, three or four attornies, by being allowed to practice here, under control of the Civil Court, might at least obtain a very comfortable livelihood.
If this should ever be the case a certain distinct mode of pleading would be introduced, which would oblige the parties to take issue upon one or two distinct points, and the court would more easily and more satisfactorily form their opinions as to the verdict.
In the present constitution of the court, it is a great difficulty to find two fit persons to sit with the Judge-Advocate; for the sittings of the court are long, and the persons who are usually appointed as members have extensive concerns to manage, and all endeavour to avoid as far as they can the performance of a duty which requires the sacrifice of so much time.
I own it would give me a very great pleasure to see the trial by jury introduced also in this court; but I am not so clear that it would be equally adviseable. And I conceive that a court, consisting of one, two, or three permanent judges, having also the powers of a Court of Equity, and also a regular Registrar or clerk to record the orders, decrees, and rules of the court, would be the most eligible, and most adapted to the circumstances of this colony.
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